What happens when a dying donor attempts to gift property but falls short of both a valid testamentary disposition and a perfected inter vivos gift? The equitable doctrine donatio mortis causa may be invoked prevent injustice. This blog unpacks how intention, delivery, and acceptance give way to a more flexible, yet still exacting, legal framework grounded in the contemplation of death.
Introduction
This blog marks the first entry in a mini-series examining the doctrine of donatio mortis causa and its place within the broader law of gratuitous transfers. Across this series, we will move from foundational principles to more nuanced and focused reviews of doctrinal aspects/ applicable caselaw. This opening installment will situate donatio mortis causa within the legal landscape and outlining the core criteria that distinguish it as a unique mechanism of property transfer.
The Law of Gift-Giving
Not only is the act of gift-giving a part of everyday life, but there is also a high degree of cultural significance inherent to gift-giving as it is the very act which forms the basis of major holidays. While gift-giving is an act that nearly everyone will engage in at some point in their lives, the law underwriting this act often goes unappreciated.
A gift, generally speaking, is a voluntary transfer of property to another without consideration.[1] Typically, when thinks about gift-giving, they are contemplating an inter vivos gift.[2] However, in this blog, we will be focusing on the often-forgotten category of gift-giving known as donatio mortis causa,[3] which is a legally distinctive category of gift-giving that blurs the lines between inter vivos and testamentary dispositions.
Before we discuss how donatio mortis causa differs, it will be necessary to understand the basic criteria required for inter vivos gifts.
The Law of Inter Vivos Gifts
The leading case as it pertains to the criteria necessary for a valid inter vivos gift has been established in McNamee v McNamee,[4] which holds that there are three criteria which must be satisfied for a valid inter vivos gift. Those being:
- Intention;
- Delivery; and
- Acceptance [5]
Intention:
The requirement of intention holds that the donor, or gift-giver, must have a clear and specific intention to make a gift, without consideration or expectation of remuneration.[6] The intention must be present at the time of the transfer and must be supported by evidence demonstrating that the donor intended to divest themselves of the property irrevocably in favour of the donee.[7]
Delivery:
The requirement of delivery holds that there must be sufficient delivery or transfer of the property to the donee, or receiver.[8] In this author’s research on the topic of inter vivos gifts, it is my opinion that the element of sufficient delivery is often the focal point of the court’s analysis.[9]
In analyzing whether the element of delivery has been satisfied, courts tend examine whether the donor has taken all necessary steps to transfer the property according to the nature of the property.[10] Delivery can be actual, constructive, or symbolic, depending on the circumstances.[11]
Acceptance:
As one may have anticipated, the element of acceptance requires that the donee must accept the gift. Analysis of acceptance is straightforward and tends to be presumed where the delivery is sufficient and when the gift is beneficial.[12] The presumption is yet another reason, why the caselaw analyses tend to emphasize the examination of delivery.
Gifts Donatio Mortis Causa
Gifts donatio mortis causa differ from the above because the essential criteria is that the gift must be made in contemplation of death.[13] That is to say, when courts are examining transfers pursuant to donatio mortis causa the analysis does not strictly apply the criteria of intention, delivery, or acceptance.
Consequently, the criteria for a valid donatio mortis causa is as follows:
- The gift must be made in contemplation of death;
- There must be delivery; and
- There must be circumstances indicating that the gift is to take effect only upon the donor’s death.[14]
In regard to the phrase “in contemplation of death”, Laidlaw J.A. in Brown v. Rotenberg, would go onto distinguish that contemplation of death does not necessarily mean in expectation of death.[15] While this may seem like a technical distinction, the implication is significant because this means there is no need to demonstrate imminent peril.
Why Have the Category of Donatio Mortis Causa?
Donatio Mortis Causa, like many other equitable doctrines, emerged to remedy and alleviate the shortfalls of the at times strict application of testamentary dispositions and inter vivos gift-giving.
For example, consider some of the requirements for valid testamentary disposition: Although section 2 of the Succession Law Reform Act,[16] provides the power and authority to distribute property after death by a will, there are certain formalities that must be complied with for such a distribution to be considered valid.[17] Similarly, the strict requirements necessary to perfect a valid inter vivos gift, particularly with respect to delivery is, at times, not feasible for the donor.
Therefore, the doctrine of Donatio Mortis Causa developed to prevent injustice where a donor attempts to make a conditional death-bed gift that fails to comply with the formalities required for a testamentary disposition or fails to satisfy the criteria necessary to perfect an inter vivos gift.
Final Remarks
Ultimately, the law of gift-giving reveals a structured yet adaptable framework: while valid inter vivos gifts remain anchored in the triad of intention, delivery, and acceptance, with delivery often serving as the main evidentiary hurdle, donatio mortis causa operates as a narrowly confined equitable exception. It relaxes strict formalities, but only where the gift is made in contemplation of death, accompanied by sufficient delivery, and conditioned to take effect upon death. The continued relevance on the doctrine’s lies in its ability to bridge gaps between rigid testamentary requirements and impractical inter vivos transfers, ensuring that clear donative intent is not defeated by technical deficiencies, while still guarding against abuse through its stringent, fact-driven criteria.
—
[1] Black’s Law Dictionary, 7th ed. (St. Paul, MN: West Group, 1999), at p. 696.
[2] Latin for “while alive”.
[3] Latin for “a gift in contemplation of death”.d
[4] McNamee v McNamee, 2011 ONCA 533 (“McNamee v McNamee”).
[5] Ibid., at para 24.
[6] Ibid.
[7] Ibid., at paras 34-35.
[8] Ibid., at para 24.
[9] For an in-depth analysis concerning sufficient delivery, see Teixeira v. Markgraf Estate, 2017 ONCA 819.
[10] Ibid., at para 44.
[11] Ibid., at paras 42-44,
[12] McNamee v McNamee, at para 48.
[13] Deziel v Deziel, 2024 ONSC 5279, at paras 89-90; citing Brown v Rotenburg, 1946 CanLII 101 (ON CA), [1946] O.R. 363, citing Cain v. Moon, [1896] 2 Q.B. 283 at 286.
[14] Ibid.
[15] Brown v. Rotenberg, 1946 CarswellOnt 48, [1946] 4 D.L.R. 139, [1946] O.R. 363, at para. 8; citing Cain v Moon, [1896] 2 Q.B. 283 at 286.
[16] Succession Law Reform Act, R.S.O. 1990, c. S.26, at section 2 (“SLRA”)
[17] As per section 3 of the SLRA, a base requirement of all testamentary dispositions via Will (whether attested or holographic) requires that it must be in writing. Further, in the case of an attested will, it must be subscribed with the signatures of two attesting witness who simultaneously witnessed the testator execute the will. In the case of holographic wills, it must be entirely in the handwriting of the testator and bear the testator’s signature.
Written by: Grant Swedak
Posted on: April 15, 2026
Categories: Commentary, Donatio Mortis Causa Series
What happens when a dying donor attempts to gift property but falls short of both a valid testamentary disposition and a perfected inter vivos gift? The equitable doctrine donatio mortis causa may be invoked prevent injustice. This blog unpacks how intention, delivery, and acceptance give way to a more flexible, yet still exacting, legal framework grounded in the contemplation of death.
Introduction
This blog marks the first entry in a mini-series examining the doctrine of donatio mortis causa and its place within the broader law of gratuitous transfers. Across this series, we will move from foundational principles to more nuanced and focused reviews of doctrinal aspects/ applicable caselaw. This opening installment will situate donatio mortis causa within the legal landscape and outlining the core criteria that distinguish it as a unique mechanism of property transfer.
The Law of Gift-Giving
Not only is the act of gift-giving a part of everyday life, but there is also a high degree of cultural significance inherent to gift-giving as it is the very act which forms the basis of major holidays. While gift-giving is an act that nearly everyone will engage in at some point in their lives, the law underwriting this act often goes unappreciated.
A gift, generally speaking, is a voluntary transfer of property to another without consideration.[1] Typically, when thinks about gift-giving, they are contemplating an inter vivos gift.[2] However, in this blog, we will be focusing on the often-forgotten category of gift-giving known as donatio mortis causa,[3] which is a legally distinctive category of gift-giving that blurs the lines between inter vivos and testamentary dispositions.
Before we discuss how donatio mortis causa differs, it will be necessary to understand the basic criteria required for inter vivos gifts.
The Law of Inter Vivos Gifts
The leading case as it pertains to the criteria necessary for a valid inter vivos gift has been established in McNamee v McNamee,[4] which holds that there are three criteria which must be satisfied for a valid inter vivos gift. Those being:
Intention:
The requirement of intention holds that the donor, or gift-giver, must have a clear and specific intention to make a gift, without consideration or expectation of remuneration.[6] The intention must be present at the time of the transfer and must be supported by evidence demonstrating that the donor intended to divest themselves of the property irrevocably in favour of the donee.[7]
Delivery:
The requirement of delivery holds that there must be sufficient delivery or transfer of the property to the donee, or receiver.[8] In this author’s research on the topic of inter vivos gifts, it is my opinion that the element of sufficient delivery is often the focal point of the court’s analysis.[9]
In analyzing whether the element of delivery has been satisfied, courts tend examine whether the donor has taken all necessary steps to transfer the property according to the nature of the property.[10] Delivery can be actual, constructive, or symbolic, depending on the circumstances.[11]
Acceptance:
As one may have anticipated, the element of acceptance requires that the donee must accept the gift. Analysis of acceptance is straightforward and tends to be presumed where the delivery is sufficient and when the gift is beneficial.[12] The presumption is yet another reason, why the caselaw analyses tend to emphasize the examination of delivery.
Gifts Donatio Mortis Causa
Gifts donatio mortis causa differ from the above because the essential criteria is that the gift must be made in contemplation of death.[13] That is to say, when courts are examining transfers pursuant to donatio mortis causa the analysis does not strictly apply the criteria of intention, delivery, or acceptance.
Consequently, the criteria for a valid donatio mortis causa is as follows:
In regard to the phrase “in contemplation of death”, Laidlaw J.A. in Brown v. Rotenberg, would go onto distinguish that contemplation of death does not necessarily mean in expectation of death.[15] While this may seem like a technical distinction, the implication is significant because this means there is no need to demonstrate imminent peril.
Why Have the Category of Donatio Mortis Causa?
Donatio Mortis Causa, like many other equitable doctrines, emerged to remedy and alleviate the shortfalls of the at times strict application of testamentary dispositions and inter vivos gift-giving.
For example, consider some of the requirements for valid testamentary disposition: Although section 2 of the Succession Law Reform Act,[16] provides the power and authority to distribute property after death by a will, there are certain formalities that must be complied with for such a distribution to be considered valid.[17] Similarly, the strict requirements necessary to perfect a valid inter vivos gift, particularly with respect to delivery is, at times, not feasible for the donor.
Therefore, the doctrine of Donatio Mortis Causa developed to prevent injustice where a donor attempts to make a conditional death-bed gift that fails to comply with the formalities required for a testamentary disposition or fails to satisfy the criteria necessary to perfect an inter vivos gift.
Final Remarks
Ultimately, the law of gift-giving reveals a structured yet adaptable framework: while valid inter vivos gifts remain anchored in the triad of intention, delivery, and acceptance, with delivery often serving as the main evidentiary hurdle, donatio mortis causa operates as a narrowly confined equitable exception. It relaxes strict formalities, but only where the gift is made in contemplation of death, accompanied by sufficient delivery, and conditioned to take effect upon death. The continued relevance on the doctrine’s lies in its ability to bridge gaps between rigid testamentary requirements and impractical inter vivos transfers, ensuring that clear donative intent is not defeated by technical deficiencies, while still guarding against abuse through its stringent, fact-driven criteria.
—
[1] Black’s Law Dictionary, 7th ed. (St. Paul, MN: West Group, 1999), at p. 696.
[2] Latin for “while alive”.
[3] Latin for “a gift in contemplation of death”.d
[4] McNamee v McNamee, 2011 ONCA 533 (“McNamee v McNamee”).
[5] Ibid., at para 24.
[6] Ibid.
[7] Ibid., at paras 34-35.
[8] Ibid., at para 24.
[9] For an in-depth analysis concerning sufficient delivery, see Teixeira v. Markgraf Estate, 2017 ONCA 819.
[10] Ibid., at para 44.
[11] Ibid., at paras 42-44,
[12] McNamee v McNamee, at para 48.
[13] Deziel v Deziel, 2024 ONSC 5279, at paras 89-90; citing Brown v Rotenburg, 1946 CanLII 101 (ON CA), [1946] O.R. 363, citing Cain v. Moon, [1896] 2 Q.B. 283 at 286.
[14] Ibid.
[15] Brown v. Rotenberg, 1946 CarswellOnt 48, [1946] 4 D.L.R. 139, [1946] O.R. 363, at para. 8; citing Cain v Moon, [1896] 2 Q.B. 283 at 286.
[16] Succession Law Reform Act, R.S.O. 1990, c. S.26, at section 2 (“SLRA”)
[17] As per section 3 of the SLRA, a base requirement of all testamentary dispositions via Will (whether attested or holographic) requires that it must be in writing. Further, in the case of an attested will, it must be subscribed with the signatures of two attesting witness who simultaneously witnessed the testator execute the will. In the case of holographic wills, it must be entirely in the handwriting of the testator and bear the testator’s signature.
Author