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Inter vivosDonatio mortis causa (DMC)
Case lawNolan v Nolan & AnorRe Bayoff Estate
In generalA gift is a gratuitous or voluntary transfer in which something is given in exchange for nothing.

Courts are therefore suspicious of gifts:
** Contracts and bargains are seen as a more valid form of economic exchange
** Gifts are perceived as less worthy of judicial intervention
** Therefore, must stricter requirements have been imposed in order to avoid the court process; this leads to: (1) More predictability in terms of success of action; (2) Easier application of the test for gifts

Worth noting:
** Generally, only bargains are perceived as reciprocal
** However, gifts can be understood as reciprocal as well: as a method of maintaining relationships; and are also significant in terms of the transfer of wealth

A third type of gift is testamentary: A gift upon death meant to take effect after death (nothing changes hands until the donor is dead). This is part of wills and estates.

DefinitionA gift between two living people mean to take effect during the life of the people who are party to the transaction.A gift created in anticipation of the donor’s death while the donor is still alive, but does not take effect until the donor dies.
Historical ImportanceConditions necessary to make a gift originated in the importance of transfer of ownership. Delivery was a important as a ceremonial indicator.
** The “livery of seisin” ceremony developed into a document called deed, which led to problems when there was no deed.
** Therefore, in the absence of the deed, the conditions for a gift had to be established to ensure that donors had time and capacity to deliberate on it.
Requirements1. Intention to make a gift
** Must be voluntary; usually expressed by words of present gift, although words are not always necessary

2. Intention on the part of the donee to accept the gift
** Not an onerous step; need only establish willingness of acceptance

3. Delivery concurrent to intention (needed to complete the gift)
** A. Actual
** B. Constructive: only allowed where ordinary delivery is not reasonably possible (i.e. too big to hand over – donor gives only a key)
** C. Symbolic (i.e. give one book to represent the whole library, place in hand and say it’s yours)

1. Impending death from an existing peril
** Though not under a state of sudden peril

2. Actual death of donor
** Gift is only to take effect upon death and will revert to donor should they recover

3. Delivery
** A. Actual
** B. Constructive: occurs where the donor transfers the means to exclusive control of the chattel, i.e. only a set of keys)
** C. Symbolic (i.e. give one book to represent the whole library, place in hand and say it’s yours)

4. Not real property
** In Canada, this would be land

Particular considerationsAlthough delivery can precede, accompany or follow the gift, donative intention must be concurrent with delivery (as per Nolan).
** Direct testimony will resolve ambiguity (Nolan)

If living together, make sure delivery is very clear (there is a high threshold).

Words alone do not constitute delivery.

Donor must have done everything possible to effect delivery – donor must give up all present and future control over the object.

Not as stringent as delivery in inter vivos gifts (lower threshold and more flexible, as per Re Bayoff).

If living together, make sure delivery is very clear (there is a high threshold).

The object can change hands before death.

General considerationsRelationship between the parties (as per Nolan):
** Professional: then less likely a gift / Personal: more likely a gift

Value of the gift (as per Nolan):
** More valuable: less likely a gift / Less valuable: more likely a gift

ExceptionsThe general rule is that equity will not perfect an imperfect gift.

Exception: Strong v Bird
** As applied in Re Bayoff, when a donee of an imperfect inter vivos gift becomes the executor of the donor’s estate, it perfects the gift.

For the Strong v Bird rule to apply, there are four conditions:
** 1. The donee must be an executor of the donor’s estate
** 2. The donor must have intended to give donee an inter vivos gift
** 3. The donative intention of the donor did not change before death
** 4. The subject matter of the gift must be capable of enduring the death of the donor.



Case References

Style of causeRatio

Nolan v Nolan & Anor, [2003] VSC121

Delivery is the legal act essential to complete a gift.

There are three elements required to perfect an inter vivos gift:
1. Intention on the part of the donor to make a gift;
2. Intention on the part of the donee to accept the gift;
3. Delivery of the object concurrent to intention (may be actual or constructive)

Re Bayoff Estate, 2000 SKQB 23

There are three elements required to perfect an DMC gift:
** 1. Impending death from an existing perill
** 2. Actual death of donor;
** 3. Delivery (actual or constructive).

The general rule is that equity will not perfect and imperfect gift. However, courts may apply an exception: the Strong v Bird rule.

Strong v Bird, [1874] LR 18 Eq 315 (UK Ch D)

When a donee of an imperfect inter vivos gift becomes the executor of the donor's estate, it perfects the gift.

For the rule to apply, there are four conditions:
** 1. The donee must be an executor of the donor’s estate
** 2. The donor must have intended to give donee an inter vivos gift
** 3. The donative intention of the donor did not change before death
** 4. The subject matter of the gift must be capable of enduring the death of the donor.

This is an exception to the general rule that equity will not perfect and imperfect gift.


A general description and comparison of inter vivos and donatio mortis causa gifts. Based on Nolan v Nolan, Re Bayoff Estate and Strong v Bird.


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