A deathbed handover can produce dramatically different legal consequences: a bailment, a trust, or a valid donatio mortis causa. The difference often turns not on what was handed over, but on who truly retained control.
Introduction
In the initial entries of this mini-series, we outlined the key criteria for DMC finding it as being situate between the law of inter vivos gift giving and testamentary dispositions.[1] The proceeding entries then analyzed the nuances of DMC largely on its own terms: its criteria, its treatment of delivery, capacity, intention, timing, and subject matter.
This entry will address how DMC compares against two other forms of legal property arrangement that have yet to be considered; namely, bailment and the trust. Both bailment and trusts, may arise from a nearly identical fact pattern that gives rise to DMC. Accordingly, understanding the difference between these forms of property arrangements against DMC is more than an academic exercise, as the characterize of a deathbed delivery is determinative as to who ends up owning the property.
DMC v. Bailment: Custody Without Conveyance
Bailment arises where one person (the bailor) delivers possession of property to another (the bailee) for a particular purpose, on the understanding that the property, or its equivalent, will eventually be returned or dealt with the bailor directs.[2] Critically, a bailment does not transfer ownership; the bailee holds mere custody, and the bailor retains the right to recall the property at any time they desire.[3]
This is precisely the line DMC must cross, and precisely where many purported DMC claims fail. In Hawkins v. Blewitt, a box containing money and clothing had been delivered to the claimant, but the donor’s request for the return of a pair of trousers from the box was fatal to the claim: this was safekeeping, not a gift, because dominion had never truly passed.[4] The Court held, possession must be immediately given, and in parting with possession, the donor must also part with dominion as a mere handover of custody, without more, will be sufficient to support a determination of DMC.[5]
The same rationale was applied in Reddel v. Dobree, where the donor delivered a locked cash box to the claimant, telling her it contained money for her, but insisted she return the box to him every three months during his lifetime, with his son holding the key until his death.[6] The Court held there was no valid DMC as the donor had preserved for himself the ability to deal with the contents as he saw fit at any time, which ran contrary to the notion of parting with dominion.[7] Accordingly, the periodic-return preserved the donor’s effective dominion over the contents which he could change from time to time.[8]
What makes the boundary genuinely interesting, is that a bailment can ripen into a DMC. In Cain v. Moon, the donor had originally delivered a deposit note to the donee for safekeeping some two years before any donative words were spoken.[9] It was only when the donor later fell seriously ill and said the note was the donee’s “if I die” that the character of the earlier delivery changed.
The Court held that the antecedent delivery, was retroactively adopted and given full legal effect as delivery for the purposes of DMC once the conditional donative intent was expressed.[10] The lesson is that the same physical act (handing over a box, a note, a set of keys) can be either a bailment or the delivery limb of a DMC, and the dividing line is not the act itself but whether, at the relevant moment, the donor’s words and conduct show an intention to relinquish dominion conditionally upon death, as opposed to an intention merely to have the property safeguarded and available for return on demand.
DMC v. Trusts: Borrowed Machinery, Different Foundations
The relationship between DMC and the trust is more subtle, because DMC actually relies on equitable principles for its foundation. Once a valid DMC is established, the donor’s personal representatives hold the property in trust for the donee pending, and then upon, the donor’s death.[11] However, DMC is not itself an express trust as the two arrangements diverge sharply at the point of formation.
An express trust is created according to its own doctrinal apparatus: certainty of intention, certainty of subject matter, and certainty of objects, together with either a transfer of the trust property to a trustee or a valid self-declaration of trust.[12] Once those requirements are satisfied, the trust is completely constituted, the beneficiary’s equitable interest vests immediately (subject to whatever conditions the trust instrument itself imposes), and generally, the settlor cannot revoke the trust.[13]
DMC does not require a certainty-of-objects or certainty-of-subject-matter analysis; its own tripartite test governs formation instead. Further, the donee’s interest does not vest on delivery, it remains a species of ill-defined contingent interest that only crystallizes if the donor actually dies while the contemplated peril persists. Revocability also remains inherent to DMC as a matter of law, as the DMC subject matter is automatically undone if the donor survives the contemplated peril, and remains capable of express revocation by the donor at any point before death.[14]
Final Remarks
DMC occupies a narrow space between its neighbours. Both bailment and the trust involve one person placing property in the hands or control of another without an outright, unconditional transfer of ownership. With respect to formation, DMC demands more than a bailment, which asks only for custody and contemplates return, but less than a trust.
What unites all three doctrines, is the same underlying inquiry: has the person actually parted with dominion, or merely arranged for someone else to hold, safeguard, or manage what remains, in substance, still theirs? The label a party chooses to put on a deathbed delivery matters far less than what the evidence shows about control.
—
[1] Donatio Moris Causa Mini-Series Pt 1: Between Inter Vivos Gifts and Testamentary Dispositions | WEL Partners Blog and Donatio Mortis Causa Mini-Series Pt 2: Delivery, Divestment, and Death | WEL Partners Blog.
[2] Gravina v. Welsh, 2018 ONSC 5638 (CanLII), at para 40; citing Punch v. Savoy’s Jewellers Ltd. et al. (1986), O.R. (2d) 383 (C.A.), at para 17 (“Punch v Savoy’s Jewellers”).
[3] Punch v Savoy’s Jewellers, at para 17.
[4] Hawkins v. Blewitt (1798), 2 Esp 662 at 662-663.
[5] Ibid.
[6] Reddel v. Dobree (1839), 10 Sim 244 at 244-245.
[7] Ibid.
[8] Ibid., at 247-248.
[9] As discussed in Donatio Mortis Causa Mini-Series Pt 4: Now, Never, or Maybe Later – The Emphasis on Timing | WEL Partners Blog; see also Cain v. Moon, [1896] 2 Q.B. 283 at 286.
[10] Ibid.
[11] As discussed in Donatio Mortis Causa Pt 6: Giving Away the House? Land, Dominion, and the Limits of Subject Matter | WEL Partners Blog; see also Sen v. Headley, [1991] Ch 425 (CA), at 440.
[12] See Express Trust Mini-Series Pt 1: Foundations, Classifications, and the Three Certainties | WEL Partners Blog and Express Trust Mini-Series Part 2: Beyond the Three Certainties: The Overlooked Elements of Trust Formation | WEL Partners Blog.
[13] Absent a revocability clause.
[14] As discussed in Donatio Mortis Causa Mini-Series Pt 4: Now, Never, or Maybe Later – The Emphasis on Timing | WEL Partners Blog.
Written by: Grant Swedak
Posted on: September 10, 2026
Categories: Commentary, Donatio Mortis Causa Series
A deathbed handover can produce dramatically different legal consequences: a bailment, a trust, or a valid donatio mortis causa. The difference often turns not on what was handed over, but on who truly retained control.
Introduction
In the initial entries of this mini-series, we outlined the key criteria for DMC finding it as being situate between the law of inter vivos gift giving and testamentary dispositions.[1] The proceeding entries then analyzed the nuances of DMC largely on its own terms: its criteria, its treatment of delivery, capacity, intention, timing, and subject matter.
This entry will address how DMC compares against two other forms of legal property arrangement that have yet to be considered; namely, bailment and the trust. Both bailment and trusts, may arise from a nearly identical fact pattern that gives rise to DMC. Accordingly, understanding the difference between these forms of property arrangements against DMC is more than an academic exercise, as the characterize of a deathbed delivery is determinative as to who ends up owning the property.
DMC v. Bailment: Custody Without Conveyance
Bailment arises where one person (the bailor) delivers possession of property to another (the bailee) for a particular purpose, on the understanding that the property, or its equivalent, will eventually be returned or dealt with the bailor directs.[2] Critically, a bailment does not transfer ownership; the bailee holds mere custody, and the bailor retains the right to recall the property at any time they desire.[3]
This is precisely the line DMC must cross, and precisely where many purported DMC claims fail. In Hawkins v. Blewitt, a box containing money and clothing had been delivered to the claimant, but the donor’s request for the return of a pair of trousers from the box was fatal to the claim: this was safekeeping, not a gift, because dominion had never truly passed.[4] The Court held, possession must be immediately given, and in parting with possession, the donor must also part with dominion as a mere handover of custody, without more, will be sufficient to support a determination of DMC.[5]
The same rationale was applied in Reddel v. Dobree, where the donor delivered a locked cash box to the claimant, telling her it contained money for her, but insisted she return the box to him every three months during his lifetime, with his son holding the key until his death.[6] The Court held there was no valid DMC as the donor had preserved for himself the ability to deal with the contents as he saw fit at any time, which ran contrary to the notion of parting with dominion.[7] Accordingly, the periodic-return preserved the donor’s effective dominion over the contents which he could change from time to time.[8]
What makes the boundary genuinely interesting, is that a bailment can ripen into a DMC. In Cain v. Moon, the donor had originally delivered a deposit note to the donee for safekeeping some two years before any donative words were spoken.[9] It was only when the donor later fell seriously ill and said the note was the donee’s “if I die” that the character of the earlier delivery changed.
The Court held that the antecedent delivery, was retroactively adopted and given full legal effect as delivery for the purposes of DMC once the conditional donative intent was expressed.[10] The lesson is that the same physical act (handing over a box, a note, a set of keys) can be either a bailment or the delivery limb of a DMC, and the dividing line is not the act itself but whether, at the relevant moment, the donor’s words and conduct show an intention to relinquish dominion conditionally upon death, as opposed to an intention merely to have the property safeguarded and available for return on demand.
DMC v. Trusts: Borrowed Machinery, Different Foundations
The relationship between DMC and the trust is more subtle, because DMC actually relies on equitable principles for its foundation. Once a valid DMC is established, the donor’s personal representatives hold the property in trust for the donee pending, and then upon, the donor’s death.[11] However, DMC is not itself an express trust as the two arrangements diverge sharply at the point of formation.
An express trust is created according to its own doctrinal apparatus: certainty of intention, certainty of subject matter, and certainty of objects, together with either a transfer of the trust property to a trustee or a valid self-declaration of trust.[12] Once those requirements are satisfied, the trust is completely constituted, the beneficiary’s equitable interest vests immediately (subject to whatever conditions the trust instrument itself imposes), and generally, the settlor cannot revoke the trust.[13]
DMC does not require a certainty-of-objects or certainty-of-subject-matter analysis; its own tripartite test governs formation instead. Further, the donee’s interest does not vest on delivery, it remains a species of ill-defined contingent interest that only crystallizes if the donor actually dies while the contemplated peril persists. Revocability also remains inherent to DMC as a matter of law, as the DMC subject matter is automatically undone if the donor survives the contemplated peril, and remains capable of express revocation by the donor at any point before death.[14]
Final Remarks
DMC occupies a narrow space between its neighbours. Both bailment and the trust involve one person placing property in the hands or control of another without an outright, unconditional transfer of ownership. With respect to formation, DMC demands more than a bailment, which asks only for custody and contemplates return, but less than a trust.
What unites all three doctrines, is the same underlying inquiry: has the person actually parted with dominion, or merely arranged for someone else to hold, safeguard, or manage what remains, in substance, still theirs? The label a party chooses to put on a deathbed delivery matters far less than what the evidence shows about control.
—
[1] Donatio Moris Causa Mini-Series Pt 1: Between Inter Vivos Gifts and Testamentary Dispositions | WEL Partners Blog and Donatio Mortis Causa Mini-Series Pt 2: Delivery, Divestment, and Death | WEL Partners Blog.
[2] Gravina v. Welsh, 2018 ONSC 5638 (CanLII), at para 40; citing Punch v. Savoy’s Jewellers Ltd. et al. (1986), O.R. (2d) 383 (C.A.), at para 17 (“Punch v Savoy’s Jewellers”).
[3] Punch v Savoy’s Jewellers, at para 17.
[4] Hawkins v. Blewitt (1798), 2 Esp 662 at 662-663.
[5] Ibid.
[6] Reddel v. Dobree (1839), 10 Sim 244 at 244-245.
[7] Ibid.
[8] Ibid., at 247-248.
[9] As discussed in Donatio Mortis Causa Mini-Series Pt 4: Now, Never, or Maybe Later – The Emphasis on Timing | WEL Partners Blog; see also Cain v. Moon, [1896] 2 Q.B. 283 at 286.
[10] Ibid.
[11] As discussed in Donatio Mortis Causa Pt 6: Giving Away the House? Land, Dominion, and the Limits of Subject Matter | WEL Partners Blog; see also Sen v. Headley, [1991] Ch 425 (CA), at 440.
[12] See Express Trust Mini-Series Pt 1: Foundations, Classifications, and the Three Certainties | WEL Partners Blog and Express Trust Mini-Series Part 2: Beyond the Three Certainties: The Overlooked Elements of Trust Formation | WEL Partners Blog.
[13] Absent a revocability clause.
[14] As discussed in Donatio Mortis Causa Mini-Series Pt 4: Now, Never, or Maybe Later – The Emphasis on Timing | WEL Partners Blog.
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