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Re Bayoff Estate, 2000 SKQB 23 (Link)


Bayoff had terminal cancer. He had given Simard the key to his safety deposit box, saying that he wanted her to have it. At the bank, paperwork was needed and Bayoff was already dead. Simard claimed it was a donatio mortis causa (DMC) gift. Simard was also the executrix of the estate.


Did Simard receive a valid giift?


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.


A DMC gift is one created while the donor is still alive, but does not take effect until the donor dies.

Court found that there had not been delivery, but that it was not DMC because B wanted S to have the property immediately (inter vivos gift). Inter vivos also failed because of lack of delivery. However, because S was the exectrix of B’s estate, the Court applied the Strong v Bird rule and awarded S the property.


Decision: In favour of Simard, based on the Strong v Bird rule.


The Strong v Bird rule: When a donee of an imperfect inter vivos gift becomes the executor of the donor's estate, it perfects the gift. 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.

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