First of all it most often assumed that the transaction must be one of gift of the subject property. The language adopted by the courts in the past has usually been in terms of some kind of gift, and this is consistent with the donatio element of the name. So far as this goes, it is traditionally accepted that we are dealing with a voluntary assignment of property, and therefore not one that is referable to any contractual basis.
In that sense it does not involve the creation of an express trust whether by declaration or otherwise, as noted earlier. The intention to make a gift, or at least a special kind of voluntary transaction, must be shown. A transaction in the terms just mentioned would, on the contrary, most likely be taken as a gift inter vivos. As we shall see, the transaction has to be made in anticipation or contemplation of death. At the same level of analysis it is clear that a donatio mortis causa will not arise if it is shown on the evidence that what was brought about was not a transfer of property or dominion, but some kind of bailment or arrangement for the security of the goods in question.
Merely putting another person in custody of goods for the purposes of looking after them, or giving someone rights of possession by way of lien or security over them does not constitute a gift of those goods for the purposes of a donatio mortis causa or, of course, a gift inter vivos. It is also clear however that in order to distinguish a donatio mortis causa from a gift inter vivos the intention must not be to pass property in the subject matter of the gift to the donee in any complete sense.
It is the alleged incompleteness of the gift pending death is a characteristic of the donatio mortis causa. We are not dealing with a situation where the donor intended the gift to take effect as a present or immediate gift or one which takes effect irrevocably and unconditionally regardless of whether the donor lives or dies. However, let us pause here to ask whether the language of gift is entirely appropriate in all cases. In fact, one can conjecture many reasons why a donatio mortis causa ought to be called something other than a gift, even though the language of gift has most often been used in the authorities.
Perhaps this only demands that we widen our concept of gift. It is true that we very often associate gifts with the direct and immediate alienation of property to someone else. Gifts occur in situations where we hand over things to others very often with immediate effect. Yet, at the same time, the making of gifts which are conditional, or in which the passing of ownership is deferred, is both common enough in fact and permissible in law.
Thus this form of gift need not be excluded from consideration just because they are somehow more complex. However, the question still remains whether the transaction and its effect really amounts to a gift, and this is something to which we will return later on.
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It is not enough to show that the donor made the gift because he or she was old. However, it seems to make little difference just what manner of death the donor might have thought was to cause his or her imminent departure. If the donor suffers a different death from that contemplated the gift will still be rendered absolute. Does this mean that the words of gift need to reflect the element of contemplation or anticipation which endow it with the required conditionality or is there are requirement that the words of gift must show that it is conditional in the required sense?
Are the two things, contemplation and conditionality related in principle at all? Are there in fact two things, circumstances showing contemplation and conditional words of gift or merely one? The best view as regards the first of these questions is probably that there is no requirement that the conditional nature of the gift be expressed or implied in the words of gift themselves.
There are authorities such as Gardner v Parker where the words of gift have been looked at to glean the relevant intention to bring about a donatio mortis causa. The required conditions as to incomplete vesting pending death and revocability are matters which can be inferred either from specific words used or from the circumstances surrounding the making of the gift.
The factor of contemplation of death is a shorthand way of saying that the gift must be expressly or impliedly made on condition to the effect that the gift is revocable until death and that complete vesting does not occur until the death occurs. There seems no particular reason why words of gift alone have to be looked at in order to determine the issue although they will be just as relevant. Bartlett v Public Trustee  was a case involving a gift that was evidenced in writing. The High Court of New Zealand held that it was appropriate to look outside the document to ascertain the relevant intention to make the gift in anticipation of death.
This would be consistent with treating the condition as something to be inferred from circumstances rather something which must appear from the words of gift proper. These circumstances should give rise to an implied obligation to give the property back if the deceased recovers. It is not enough to establish a donatio mortis causa that the donor or maker of it merely had some expectation of dying at the time that he or she made the gift.
Also, it is not enough that the maker is shown to have been old, fatigued, weak or ill, or that he or she had some subjective apprehension that his or her condition was frail and likely to lead to imminent expiry. These are, of course, matters of evidence that the courts can take into account as matters from which appropriate inferences can be drawn. What has to be established clearly, whether by direct or circumstantial evidence, is that the gift itself was made in contemplation of death.
Possibility of death and not certainty of death is the required element. In Northcott v Public Trustee it was suggested that the gift must be made both in contemplation of possible death and of the possibility of recovery. In other words, the requirement is not one of showing that the deceased apprehended that death was certain.
Such an element of certainty might well negate the requirement that the transaction be one which is revocable at any time before death.
In Lord Advocate v. M'Court  , it was said that if death was certain, such that the possibility of the donor's revival was absent, there was no possibility of a donatio mortis causa. In other words, the purported gift must either be treated as an attempted gift inter vivos , or as testamentary in nature requiring a will.
What needs to be shown is that there was an apprehension on the part of the deceased of impending or possible death which colours the nature of the transaction as a conditional one. It is clear that if this death does not occur within a reasonable time the gift fails. It would also seem that the gift is revocable and the donor might reclaim what he or she purports to have given.
In the first case it seems that the gift fails automatically on the recovery of health of the donor without any separate act of revocation. In the second case, it would seem that the donor can reclaim the subject matter of the gift by an act of express or implied revocation such as by retaking possession of that which has been delivered.
Furthermore it might be that the donor can do this even though he or she remains in the condition as to health which existed when the gift was made or in fact some other endangering condition. One likely contentious issue concerns the capacity to make the gift. Is the test of capacity that which applies in respect of gifts inter vivos or is it the rather more idiosyncratic notion of testamentary capacity which applies in respect of testamentary gifts?
It would seem that the quasi-testamentary characteristics of a donatio mortis causa ought to require that the test of capacity of the donor should not be dealt with by normal rules applicable in respect of gift inter vivos. The relevant principles should be those laid down in Banks v Goodfellow  relating to testamentary capacity. The terms of the transaction in question must be such as to show that it was conditional in nature the condition being that it does not vest completely until the death of the maker of it.
It is for this reason that the transaction is said to be revocable at any time before the death by the testator and that it fails in the event that the death of the testator does not occur soon after it is made.go site
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Whether this condition exists or not depends on construction of the terms of the transaction itself. In the Canadian case of Re Bayoff Estate  the deceased was suffering with cancer. He gave a key to a bank safety deposit box containing savings bonds and coins and the title deeds to real estate, to his wife, the purported donee, and provided her with authority to take to the bank so that she could clean out the contents of it. The Bank refused access to the box on the basis of the authority during the lifetime of the deceased but permitted access after death. The Court indicated that the delivery of the keys to the safety deposit box would have sufficient of itself to constitute a donatio in respect of the savings bonds and the coins.
However, it held that there were no words used by the deceased such as would indicate that the gift was conditional on death in the required sense. The original requirement was usually put in terms of delivery of the subject matter of the alleged gift. The delivery of the goods by the donor in such a way as would pass property in them was required. A delivery merely for the purposes of creating custody or security in or bailment of the goods was not thought to be sufficient.
It must be complete although there is no requirement that the delivery be made contemporaneously with the expression of intention to make the gift.
Normally actual delivery is what has been taken to be required, although in cases where that is physically impossible the delivery of the means of obtaining possession of the goods has been held be sufficient. Thus delivery of a savings account pass book has been held sufficient for a donatio mortis causa of the funds in the account. Similarly, a delivery of the deposit book for a cheque account would be insufficient because it provides no access to the funds in the account.
It has not as yet been determined what the situation might be with respect to funds which are accessible with the use of bank and credit cards. However, on the principles established it would seem that where the delivery of such a card and the appropriate identification number provides access to the funds themselves, these might be the subject of a valid donatio mortis causa.
How far is delivery in fact essential though? On a closer look, the authorities on this issue are by no means free of difficulty. The Canadian decision of Brown v. In respect of transactions inter vivos there can be actual delivery of the goods in question or where, for example, this is impracticable given the size or bulk of the goods there can be constructive delivery.
It has been suggested, however, that in respect of delivery constituting a donatio mortis causa there needs to be some element of formal delivery. For example, in Winter v Winter  Crompton J. Actual delivery of the chattel is not necessary in a gift inter vivos.
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In the case of a donatio mortis causa there is a reason for requiring some formal act. It is sufficient to complete a gift inter vivos that the conduct of the parties should show that the ownership of the chattel has been changed.
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In Birch v. Treasury Solicitor  it was held where the subject matter of the gift is bulky in nature, the handling to the donee of a key to the box or place where the thing is kept would be sufficient to constitute delivery. It is not to be regarded as merely symbolic. Also in Cai Guo Xiang v Mok Hang Won Elsa , above, where the deceased has handed over to the donee a bunch of keys including those to a safety deposit box containing bonds and share certificates this would not be enough without accompanying words to indicate the underlying content of the gift.
If that element is present there is no intention to make a gift in any event. In Costiniuk v. At times she was in considerable distress and often unconscious. At other times she was entirely lucid and understood that she was likely to die soon. She had a long standing relationship with the plaintiffs. She had no immediate family. Arrangements were made by hospital staff to have a lawyer come to have her execute a will to that effect.
However the deceased was unconscious and this did not eventuate. Brooke J. The real question was whether there had been any delivery.
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