Donatio Mortis Causa UK: Gift in Contemplation of Death — Re Craven’s Estate

Updated 31 May 2026 · 9 min read · Wills & Estate Planning

A donatio mortis causa (DMC) — Latin for “gift because of death” — is a deathbed gift that passes property outside the formal requirements of a witnessed will. Recognised by English equity since the eighteenth century, a DMC allows property to pass on death without a Wills Act 1837-compliant document, provided three strict conditions are met. Understanding when a DMC works — and why it is risky to rely on — is essential for anyone involved in estate administration or will planning.

What Is a Donatio Mortis Causa?

A DMC sits between an outright gift in life and a testamentary gift in a will. The donor hands over property (or the means of controlling it) to the donee while alive, but the gift is conditional on the donor’s death from the anticipated cause. If the donor dies of that cause, the gift becomes absolute on death. If the donor recovers, or if the donee dies first, the gift fails and the property reverts to the donor.

The doctrine derives from Roman law (donatio mortis causa) and was adopted into English equity through cases including Tate v Hilbert (1793) and Jones v Selby (1710). It was comprehensively analysed by Farwell J in Re Craven’s Estate [1937] Ch 423 and revisited by the Court of Appeal in King v Dubrey [2015] EWCA Civ 581, which confirmed the doctrine’s continued existence in modern English law and clarified the contemplation-of-death requirement.

DMC is deliberately an exception to the strict formalities of the Wills Act 1837. It is sometimes called “the poor person’s will” — a way for a dying person to dispose of property without access to a solicitor or the time to execute a formal will.

The Three-Part Test: Re Craven’s Estate [1937]

Farwell J in Re Craven’s Estate identified three conditions that must all be satisfied for a valid DMC:

• 1. Contemplation of death from a specific, imminent peril. The donor must have been contemplating death from a particular cause at the time of the gift — a serious illness, an imminent operation, or a specific danger. It is not necessary that death was certain or even likely; it is enough that the donor had a genuine, specific apprehension of dying from that cause. A general, abstract awareness that death comes to us all is insufficient.
• 2. The gift must be conditional on death. The gift must be made on the understanding that it takes effect only if the donor dies of the apprehended cause. An unconditional, immediate gift in life is not a DMC — it is an ordinary inter vivos gift governed by different rules (including whether the donor has done everything necessary to effect the legal transfer under the rule in Milroy v Lord (1862)).
• 3. Delivery of dominion over the property. The donor must have delivered the property, or the means of controlling it, to the donee before death. A mere oral promise — “when I die, I want you to have my watch” — without handing over the watch (or at least the key to the box containing it) is not enough.

The Delivery Requirement

Delivery is the most litigated element of DMC claims. The donor must transfer practical dominion — control — over the subject matter. Recognised forms of delivery include:

• Physical delivery — handing over cash, jewellery, or other tangible chattels
• Keys or means of access — handing over the key to a safe, strongbox, or motor vehicle (Re Cole [1964] Ch 175)
• Title deeds to land — confirmed as sufficient in Sen v Headley [1991] Ch 425 (establishing that land can pass by DMC)
• Savings account passbook or bank book — accepted as delivery of the bank debt in older authorities (Re Beaumont [1902] 1 Ch 889)
• The donor’s own cheque — can constitute DMC of funds if cleared before the bank account is frozen on the donor’s death

Insufficient delivery: a verbal promise without handing over the property; handing over a copy of a document while retaining the original; handing over an uncashed cheque that is dishonoured after the donor’s death. For modern assets (bank accounts accessed online, cryptocurrency wallets), the courts have not definitively ruled, but the dominion principle suggests that providing sole access credentials might suffice — though the position is uncertain and litigation risks are high.

Property That Can Pass by DMC

A wide range of property can in principle pass by DMC:

• Cash and tangible chattels (jewellery, art, vehicles)
• Cheques and negotiable instruments
• Bank account balances (with sufficient delivery of access/passbook)
• Land and real property (since Sen v Headley [1991])
• Shares (delivery of share certificates is generally required)

Property that cannot pass by DMC includes property the donor does not own and property that is inherently inalienable. A donor cannot make a DMC of property in trust for a third party, or of property already subject to a binding contract of sale. The doctrine also does not extend to life insurance policy proceeds payable directly to a named beneficiary (since these do not form part of the estate at all).

DMC vs Legacy in a Will: Key Differences

While both a DMC and a will legacy transfer property on death, there are important distinctions:

• Formalities: A will requires writing, the testator’s signature, and two independent witnesses; a DMC requires only delivery with the right intention — no writing, no witnesses
• When enforceable: A will only takes effect at death; a DMC may give the donee an immediate equitable interest (subject to the condition of death), which can be enforced against the estate
• Revocation: A will can be revoked by a later will; a DMC is revoked by the donor recovering, retaking the property, or making an inconsistent will — but the donor cannot revoke by will alone without retaking possession of the property
• Priority on insolvency: Both a DMC and a specific legacy yield to the deceased’s debts if the estate is insolvent — a DMC gives no priority over creditors
• IHT: HMRC treats a DMC as forming part of the deceased’s estate for IHT purposes — it is not a lifetime gift and does not start the seven-year PET clock

Why You Should Not Rely on DMC Instead of a Will

Despite its legal recognition, relying on a DMC instead of a formal will is risky:

• Proof problems: After the donor’s death, evidence of the required intention and the act of delivery may be sparse or contested. Claims are frequently litigated and disputed by the residuary estate
• Scope limitations: A DMC can only cover property actually delivered; it cannot comprehensively dispose of an entire estate
• Fraud risk: Courts scrutinise DMC claims carefully precisely because they are susceptible to invention by dishonest claimants — the stricter the court’s analysis, the more likely a genuine DMC is challenged
• No substitute for professional drafting: A properly executed, professionally drafted will provides certainty, covers all assets, and is far less likely to be disputed

A valid DMC is better than intestacy for transferring a specific asset. But it should never be treated as an adequate substitute for a will — even a homemade will, if properly witnessed, gives far greater certainty and scope.

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