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A Gift Causa Mortis

A.  What Is a Gift Causa Mortis?

As stated in McCarton v. Estate of Watson, 39 Wn App. 358, 363 (1984):

Under Washington law, a gift causa mortis is established when:

  1. A gift is made in fear of approaching death from some sickness or peril;
  2. The donor dies from such sickness or peril without having revoked the gift;
  3. There is actual, constructive, or symbolical delivery of the gift to the donee or to someone for him; and
  4. The evidence reveals the donor’s present intent to pass title to the gift.  [Citations omitted.]

B.  Further Requirements for Making a Gift Causa Mortis

  1. Personal Property Only.  Another requirement for the making a valid gift causa mortis, unstated in McCarton, is that the subject of the gift must be personal property; real property cannot be conveyed as a gift causa mortis.  Estate of McDonald v. Swanson, 60 Wn.2d 452 (1962).
  2. Donor Can’t Survive Peril.  A further requirement for the making a valid gift causa mortis is that the donor cannot survive the peril that existed at the time of the donation.  From the time of the gift, the donor’s health must deteriorate, ultimately resulting in the donor’s death; there can be no intervening period between the onset of the peril and the donor’s death.

So, for example, in U.S. v. Wells, 283 U.S. 102, 51 S. Ct. 446 (1931), Decedent, suffering from asthma, ulcerative colitis, and intestinal cancer, made transfers in December, 1919, and January and June, 1921, during which time he was multiply hospitalized and released, and he ultimately died in August, 1921.  While the government alleged that Decedent made the transfers in contemplation of death, the Court found that Decedent had survived the peril that had existed at the time of the various transfers and held that Decedent had made gifts inter vivos instead.

In Fendley v. Laster, 260 Ark. 370, 538 S.W.2d 555 (1976), the donor had had a serious heart attack and had made a gift two months later.  Nevertheless, he thereafter actively conducted his business affairs for approximately one year and died five years after making the gift.  The Court found that the donor had recovered from the peril and held that the gift causa mortis to be invalid.

And in Newell v. National Bank of Norwich, 212 N.Y.S. 158, 214 A.D. 331 (1925), the donor was seriously ill and expected to promptly die, but he recovered and lived for four more years; Held: no gift causa mortis.

C.  A Gift Made in Contemplation of Death May Not Be a Gift Causa Mortis

Lastly, merely because a gift is made in contemplation of death does not necessarily make it a gift causa mortis.  In Grand Rapids Trust Co., v. Bellows, 224 Mich. 504, 195 N.W. 66 (1923), Decedent made a gift while hospitalized and diagnosed in the last stages of death and died two days later; Held: gift inter vivos.

And in Vosberg v. Mallory, 155 Iowa 165, 135 N.W. 577 (1912), the donor made a gift while in extremis and died three days later: Held: gift inter vivos.

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