Gifts Mortis Causa in Ontario

Gifts mortis causa (also referred to as donatio mortis causa) occupy a narrow but important space in Ontario estate litigation. They arise when a person makes a gift in contemplation of death, intending it to take effect only if death occurs. These gifts fall somewhere between an inter vivos gift and a testamentary disposition under a will.

Although relatively uncommon, gifts mortis causa frequently surface in contentious estates, particularly where a last-minute transfer appears to contradict an existing estate plan.

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What Is a Gift Mortis Causa?

A gift mortis causa is a conditional gift made when the donor is contemplating death from an existing peril. The gift is revocable if the donor survives and only becomes effective upon death.

The doctrine has its roots in English common law. In the oft-quoted case of Cain v. Moon, [1896] 2 Q.B.D. 283 (quoted in the Court of Appeal decision Thompson v. Mechan), Lord Russell of Killowen C.J. reiterated the three things that must combine for an effectual donatio mortis causa:–

… first, the gift or donation must have been made in contemplation, though not necessarily in expectation, of death; secondly, there must have been delivery to the donee of the subject-matter of the gift; and, thirdly, the gift must be made under such circumstances as shew that the thing is to revert to the donor in case he should recover.

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The Three Essential Elements

Canadian courts consistently apply a three-part test:

1. Contemplation of Death

The donor must make the gift while contemplating death from an existing illness or peril. A general awareness of mortality or advanced age is insufficient. The contemplation must relate to a specific, impending risk.

2. Delivery

There must be delivery of the subject matter of the gift before death. Delivery may be:

• Actual (physical transfer of the item),
• Constructive (such as handing over keys or access instruments), or
• Symbolic, in limited circumstances.

Without delivery, the gift fails. Courts strictly scrutinize this element.

3. Conditional Upon Death

The gift must be conditional on death. If the donor survives, the gift is revoked automatically. The conditional nature distinguishes it from a completed inter vivos gift.

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Distinguishing Mortis Causa Gifts From Wills and Inter Vivos Gifts

A gift mortis causa differs from:

• A will — which must comply with statutory formality requirements and passes by probate; and
• An inter vivos gift — which operates immediately upon delivery, without condition.

Because deathbed gifts operate outside formal testamentary requirements, courts subject them to strict analysis.

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Litigation Considerations in Ontario

Burden of Proof

The party asserting a gift mortis causa bears the onus of proving all elements clearly and unequivocally. Courts treat these claims with skepticism because they operate outside the formal safeguards of the Succession Law Reform Act.

Evidentiary Challenges

Because these gifts typically arise in last-minute circumstances, evidence is often limited to witness testimony. The absence of written confirmation can significantly weaken the claim.

Interaction with Wills

A valid gift mortis causa removes the property from the estate and operates independently of the will. As a result, these claims often arise alongside will challenges or dependant support applications, particularly where the alleged gift disrupts an expected distribution.

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Conclusion

Gifts mortis causa remain a recognized but narrowly applied doctrine in Ontario estate law. To succeed, a claimant must establish:

1. The donor contemplated imminent death from an existing peril;
2. Delivery of the subject matter occurred before death; and
3. The gift was conditional upon death.

While rare, gifts mortis causa can significantly alter estate distributions and should be carefully analyzed whenever a last-minute transfer is alleged.