In a rare decision considering whether attempted gifts made “donatio mortis causa” were effective, Young J of the NSW Supreme Court found that the 3 elements were:
(1) the gift must be made in contemplation of the donor’s death, although not necessarily in expectation of death;
(2) there must be delivery of the subject matter of the gift to the donee or a transfer of the means or part of the means of getting at the property, or, as has been said, the essential indicia of title; and
(3) the gift must be conditional upon it taking effect on the death of the donor, being revocable until that event occurs.
There were 3 attempted gifts.
His Honour found that the first and the third of the requirements was satisfied in relation to each of the gifts.
The 2nd requirement was met in relation to a purported gift of passbook account and a fixed term investment account. The deceased had given to the applicant his passbook and a card containing details of his fixed term investment account, saying “Take these. I don’t need anymore.” And “Plenty there for you. Look after you.”
In relation to a purported gift of a unit, the deceased gave to the applicant the keys to his apartment and a council rates notice, saying “You live here when I go” and that the unit was “now yours” and later “All yours now. Not coming back. Look after Shorty.” (Shorty was the deceased’s pet bird.)
His Honour found found that the delivery of the certificate of title would have been a delivery of the essential indicium of title, but delivery of the keys and rates notice was not.