Did you know that there is a provision in law that allows you to gift someone something if you think you are about to die without having to write a will?
A gift can be defined as the transfer of an existing movable or immovable property made voluntarily and without consideration, by one person (the donor) to another (the donee) and accepted by or on behalf of the recipient.
Such acceptance must be made during the lifetime of the donor that is while they are still capable of giving. Upon death, the gift becomes obsolete.
In law, gifts are of two types, there are gifts made between living persons (gifts inter vivos), and gifts made in contemplation of death (gifts mortis causa).
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Kenyans.co.ke Causa mortis is a Latin term referring to the awareness that death is approaching. In property law, when a party, acting with the awareness that their death is approaching, gives something to another party, the resulting gift is known as a gift causa mortis.
Section 31 of the Law of Succession Act provides as follows with respect to gifts made in contemplation of death;
First, you have to be thinking that you are about to die, whether by illness etc
Equally, you have to ensure that you actually gift the person whatever you intended to; e.g a car by giving out car keys.
When gifting in this manner, you must show intent that, should you not die, the gift has to be reverted back to you.
Contemplation of death
This requirement will only be satisfied if the Donor contemplates death in the near, but not imminent future, at the time that the gift is made.
For example; James is about to undergo heart surgery, during which he has approximately a 50% chance of surviving. Before entering the surgery, he calls over his friend, Peter and says “You’ve always been a good friend Peter. Here, take my car keys.” He then gives Peter the keys. This would undoubtedly be considered a gift causa mortis.
The contemplation must therefore be more than a general acknowledgement of death in the future.
Conditional and absolute on death
In this case, the donor must intend the gift to take effect and become obsolete only upon their death
Parting With dominion, possession or control
The final requirement is that the donor must part with dominion, control or possession over the subject matter of the donatio mortis causa.
This involves both the donor’s mental intention to part with control and the donor’s sufficient physical delivery or transfer of the subject matter of the donatio mortis causa or something representing it to the donee.
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