Introduction

The doctrine of donatio mortis causa (DMC) occupies a unique space in succession law, positioned halfway between a gift and a testamentary bequest. Rooted in Roman law and preserved in English and Indian jurisprudence, it reflects a human anxiety surrounding death and an urgent need to secure one’s affairs. Simply put, a donatio mortis causa is a gift made by a person in anticipation of their death, which only takes effect upon the death of the donor and is revocable until that event.

The doctrine’s continued recognition in established law and equity shows its relevance, especially in situations where people, when they don’t have the means or time to draft, register, and execute formal wills, wish to make arrangements for their property. This article contains a detailed analysis of the doctrine, its conceptual foundations, legal origins, and current stance.

Historical Origin and Conceptual Foundation

By definition, donatio mortis causa means a conditional gift, contingent on death. Over centuries, English courts adopted this principle under common law, and this doctrine made it optional for donors to gift away their property or assets irrevocably while they are still alive. This makes the division of estate more substantiated than a mere promise, even though it is more informal than a written will.

At its core, a donatio mortis causa is premised on three essential features:

1. Anticipation of Death: The donor must be acting under the belief or fear of impending death.
2. Conditional Nature: The gift must be explicitly contingent on the donor’s demise—if the donor survives, the gift is revoked.
3. Delivery: There must be actual or virtual delivery of the gift to the donee.

Thus, DMC, as a doctrine, stands out as an unconventional legality; revocable like a will, but effective without the formalities usually required for testamentary dispositions.

Core Principles: When is a DMC Valid?

The doctrine is not freely or frequently applied, owing to its peculiarity. Courts are cautious and examine each condition closely.

• Expectancy of Imminent Death
  The donor must make the gift in clear premonition of an expected or likely death in the near future. This need not necessarily be in response to a specific illness or medical diagnosis, but it must be a rational assumption that has to be acted upon. Death must be contemplated not in abstract, but in an identifiable, proximate sense. For example, if a soldier gives his belongings to a friend before going into battle and dies in combat, a DMC may be established because the threat of death is immediate.
• Conditional on Death
  
  This gift is contingent on the donor’s death in the sense that if the donor survives, the gift fails. The gift also fails if the donor revokes it before their death, or if their intentions change about the gift and their conduct becomes inconsistent accordingly towards the donee. The donee, obviously, does not have absolute rights over said gift unless the death occurs.
• Delivery
  
  The delivery of the gift may be done in one of three ways:
• By physical handover, like a box of jewellery
• By symbolic handover, like the keys to a house
• By documentary, as in a signed gift deed, share certificate, etc.

This establishes the seriousness of the donor by providing meaningful evidence of the same, which shows that a DMC is much more than a mere intention to gift.

Delivery: Central to the Doctrine

The uploaded material puts considerable emphasis on delivery, rightly identifying it as the most contested and vital element of the doctrine. Without delivery, no DMC can be upheld.

Examples of delivery include:

• Delivery of keys to a trunk containing valuables, accompanied by words indicating that it shall belong to the recipient upon death.
• Handover of bank passbooks, share certificates, or title deeds—not as mere holders, but with accompanying expressions indicating intent to transfer ownership after death.

Courts insist that delivery must not be symbolic in a trivial sense. It must suggest real control passing, and the donee must hold it in trust until the donor dies. The act of delivery, therefore, doubles as evidence of intention and a mechanism of transition.

Statutory Standing

One of the distinguishing features of donatio mortis causa is that it exists in conflict with the Wills Act and the Indian Succession Act, 1925, both of which prescribe stringent formalities on testamentary dispositions. DMC circumvents these formalities, which makes it appealing in emergencies, but also vulnerable to abuse or misinterpretation.

Indian law doesn’t explicitly codify DMC, but courts have acknowledged its legitimacy through common law interpretation and equitable principles. The doctrine is especially applicable in cases where the donor has made an informal disposition that satisfies the requirements of a DMC but lacks testamentary formality or has left no formal will.

Revocability and Legal Effect

Another key distinction between DMCs and regular gifts is that DMCs are revocable, due to the fact that it is a contingent gift. The donor may withdraw the gift at any time before death, or circumstances like destruction of the subject matter or change of the donee may imply revocation. If the donor survives the peril they feared, the gift automatically is invalidated, as previously discussed.

However, once the donor dies, and all three core principles are met, the donee becomes the rightful owner of the property, and no probate is mandated. This makes it an operation outside the standard, assumed private system, which has its strengths and weaknesses.  

Case Law Illustration

There exist a few examples that explain the relevance and importance of this doctrine in judicial dealings:

• Before leaving for war, a soldier turns over his money and documents, stating that they belong to a designated recipient in the event that he does not return. He is killed in combat. Courts have confirmed that this is a legitimate DMC.
• The keys to a jewellery box are given by a gravely ill person, who specifies that the jewellery should only be given to the recipient in the event of his death. He passes away imminently. This is construed as a legitimate DMC.
• In contemplation of death, a person hands over an unendorsed cheque made payable to himself. Because the cheque is only a promise to pay and the donor must still be living for it to be honoured, courts have ruled that this is invalid.

Thus, delivery of the subject matter and the present right over future enjoyment are crucial.

Limitations and Caution in Application

It makes sense that courts are leery of DMCs. They pose a risk of false claims, undue influence, or ambiguity because they do not follow the formal execution of a will. Despite its flexibility, the doctrine cannot replace a will. It is an exception that demonstrates the rule—only permitted in specific, well-defined situations.

Furthermore, not every kind of property can be the focus of a DMC. For instance, unless there are statutory exceptions, real property (land, homes) cannot typically be transferred under DMC; donor-payable checks are not acceptable DMC subjects; and revocation may be brought about by behaviour, survival, or property destruction.

To avoid abuse and maintain the integrity of the donor’s estate, these limitations are essential.

Modern Relevance and Status Quo

The doctrine of DMC retains its relevance in India with courts increasingly recognising informal family arrangements, verbal declarations, and equitable intentions. DMCs pave the way for real-life testamentary expressions, particularly when formal wills are not made in time.

However, modern jurisprudence maintains a cautious approach. The burden of proof lies heavily on the donee, and courts are reluctant to infer DMC unless the intent, condition, and delivery are clear beyond doubt.

Opinion and Suggestions

Those planning their estate or devising succession plans must be made aware that while the doctrine offers flexibility and allows for genuine last-minute preparation, it should be treated as a last resort, not an alternative to legitimate, informed decisions. Legal practitioners must encourage individuals—especially the elderly or medically vulnerable —to write, register, and execute valid wills with named executors and beneficiaries.

Furthermore, the scope of this doctrine should not be extended casually. The Indian Succession Act consists of statutory safeguards to avoid illegitimacy in testamentary dispositions, and courts should respect this by strictly adhering to the three core principles of this doctrine to avoid faulting the said safeguards. The real value of the doctrine lies in its capacity to do justice in urgent, exceptional cases, not in supplanting formal testamentary law.

Further reforms might strongly consider codifying the doctrine of donatio mortis causa under Indian law, especially in light of rising legal literacy and demand for estate planning tools. However, this codification must define the acceptable range of DMC so as to prevent overriding of probate protections.

Conclusion

The doctrine of donatio mortis causa occupies a unique space in legal theory and practice, as it bridges the informal impulse to give away with the formal need to prove legitimacy. It survives today because of its ability to accommodate human realities: fear of death, urgency, sentiment, and informality, and it does so without sacrificing legal integrity, because courts continue to demand clear proof of intent, condition, and delivery.

The doctrine will retain a narrow but powerful presence in the law of succession. It reminds us that sometimes, law must honour not just documents, but every human being’s wishes.