Chapter J. Gifts Causa Mortis

• Jurisdiction: Washington

J.GIFTS CAUSA MORTIS

J.1. In General

One obvious way for a person to achieve the net effect of a testamentary disposition without the need for a will is to give the property to the intended beneficiary before the donor's death. The donor can even retain certain incidents of ownership, such as a life estate and physical possession, until death, as illustrated by the cases concerning deeds.⁴⁰⁰ However, an important characteristic of a will that an inter vivos gift does not include is revocability—a gift must be an absolute and final present transfer of an interest in the property, and it cannot be revoked once made.⁴⁰¹

An exception to the nonrevocability of gifts is the narrow area of gifts causa mortis. These are gifts made by a donor in contemplation of imminent death, and they are revocable prior to the donor's death. Therefore they have significant characteristics of a will without the requirement of a will's formalities. They are, however, available in only a very limited set of circumstances, and they are not generally capable of being used as long-range estate planning devices.⁴⁰²

The policy of the law generally favors disposition of property by gift causa mortis, at least when there are no conflicting claims of creditors or others and when only a technicality of the gift law might stand in the way of an effective transfer.⁴⁰³

J.2.Definition and Elements

A gift causa mortis has most of the elements of an ordinary inter vivos gift, and in most respects it is analyzed according to the same rules of law, especially regarding such matters as effective delivery, donative intent, and so on.⁴⁰⁴

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The major distinction between the two types of gift is that whereas an inter vivos gift must be unconditional, final, and effective upon delivery, a gift causa mortis is conditional upon the nonsurvival of the donor, and it is not fully effective until the donor's death.⁴⁰⁵ It does pass a present interest and the right to dominion over the property, but the donor retains the right to revoke, and therefore the donee has no right to use or dispose of the property until the donor's death.⁴⁰⁶

In addition to the above, a gift causa mortis must satisfy certain other requirements: (1) it must have been made under the donor's apprehension of approaching death from an existing sickness or peril; (2) the donor must die from the sickness or peril without revoking the gift; and (3) there must be sufficient delivery with the intention to pass title, subject only to revocation in the event of recovery⁴⁰⁷

If any of the above elements of a gift causa mortis is missing and there is also no inter vivos gift intended or consummated, the transaction probably will be invalid as an attempted testamentary disposition.⁴⁰⁸ Of course, the donor must also have the mental capacity to make a gift, and that capacity will be judged by the same standards as those used for determining mental capacity to make a will.⁴⁰⁹

Any "species of person[al] property capable of delivery, either constructive or actual, may be the subject of a gift mortis causa."⁴¹⁰ Real property cannot be given in this manner.⁴¹¹

There is no particular period of time before death during which a gift causa mortis can be made. What is required is that the donor

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be in apprehension of death from an existing condition. In the usual case the donor has died within a few days or weeks of the gift,⁴¹² and after a very lengthy period of time a gift causa mortis would be difficult to establish.⁴¹³

One matter that is less than clear from the cases is whether the gift is void or merely revocable if the donor survives, and then later dies of another cause. The earliest Washington case on the subject uses the term "void," implying that the property vests again in the donor without any further act on his or her part;⁴¹⁴ whereas the latest case states only that the gift "may be revoked" if the donor survives.⁴¹⁵ If the latter is taken literally, however, it would be contrary to the general rule that a gift causa mortis is revoked by operation of law upon the donor's recovery⁴¹⁶

J.3.Intention and Delivery

For a gift causa mortis to be valid there must be a present intention to make a gift.⁴¹⁷ A mere present desire that the donee have the property at the donor's death is not sufficient and requires a formal will.⁴¹⁸ The donor must be willing to part with all dominion and control over the property other than the right to revoke and to vest it in the donee.⁴¹⁹

Intention is tied closely to the requirement of delivery. The clearest intent to make a present gift is insufficient if not combined with some act of delivery⁴²⁰ Nor is delivery sufficient without the requisite intent.⁴²¹

Delivery is a complex concept beyond the scope of this work. But gifts causa mortis are especially subject to the principle that delivery need only be as complete and as near to actual as

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circumstances permit.⁴²² Because the donor is often on his or her deathbed or otherwise unable to make actual delivery of the property, and because some property is simply incapable of manual delivery, constructive delivery will suffice.⁴²³ Thus the contents of a safe-deposit box could not be delivered by giving the donee the key when actual delivery of the contents themselves was possible at the time;⁴²⁴ but delivery of the key plus other acts of delivery, such as a letter of instruction to the bank, may suffice under the circumstances.⁴²⁵ The same would be true of giving the donee a key to the donor's house, which would not be delivery of the contents that...