Donatio mortis causa

In Estate of Chen Soo King ([2013] HKEC 210, CFI) C was the adopted son of the deceased. He claimed to be entitled to the shares, cash, jewellery and other assets forming the deceased’s estate by virtue of donationes mortis causa (DMC).

The essential elements of the doctrine are:

‘(i)The donor must have made the gift in contemplation though not necessarily in expectation of death.

(ii) He must have delivered the subject-matter of the gift to the donee or transferred to him the means or part of the means of getting at that subject-matter, e.g. delivering a key, like car keys, or a key to a box containing essential indicia of title, intending to part with dominion over the property to which the key relates.

(iii) The circumstances must have been such as to establish that the gift was to be absolute and complete only on the donor’s death so as to be revocable before then. A condition to this effect need not be expressed and will normally be implied from the fact that the gift was made when the donor was ill.’  (Official Administrator v Luk Ho Tong ([2005] 3 HKC 615 per Cheung J).

The burden of proof was on C to show that these requirements had been satisfied([28]). Any claim based on the doctrine must undergo ‘the strictest scrutiny’ ([50]).

Shares can be the subject of a DMC ([40]) and delivery of the share certificates would be sufficient to satisfy requirement (ii) ([48]).

C’s claim succeeded in respect of the shares and other assets which were in a safe deposit box for which the deceased had given him the only keys ([56]). The claim also succeeded in respect of bank deposits where the deceased had given C the passbooks ([59]). The claim failed where the assets (or the means of controlling them) were in the deceased’s flat. It was not enough that he held one of the two sets of keys to the flat.

Michael Lower

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