PROBATE CORNER
PROBATE CORNER
Gifts Made In Contemplation Of Death
DAVID M . GARTEN
“ Causa mortis ” is Latin for , “ because of death .” A gift causa mortis is a gift that is made in contemplation of impending death and is contingent upon the donor ’ s death . The classic example is a gift made by a donor on his death bed . In order to establish a gift causa mortis , the donee must prove by clear and convincing evidence that : ( 1 ) the gift was made in contemplation ( or a premonition ) of death from a present illness , or impending danger ; ( 2 ) the donor delivered the gift so that he lost dominion and control over the gift and the donee retained possession of the gift ; ( 3 ) the donor died of the ailment or peril ; and ( 4 ) the gift was made under such circumstances as to be clear that the gift was revocable at the will of the donor by his survival of the illness or danger . See Leonard v . Campbell , 138 Fla . 405 , 189 So . 839 ( Fla . 1939 ); Szabo v . Speckman , 73 Fla . 374 ; 74 So . 411 ( Fla . 1917 ); Josephson v . Kuhner , 139 So . 2d 440 ( Fla . 1st DCA 1962 ); Gonzales v . Zerda , 802 S . W . 2d 794 ( Texas App . 1990 ). Consider the following examples :
( a ) John is about to undergo quadruple bypass surgery , during which he has approximately a 50 % chance of surviving . Before entering the surgery , he calls over his friend , William and says “ You ’ ve always been a good friend William . Here , take my Rolex watch .” He then gives William the watch .
( Ex . 1 ) Prior to the surgery , John changes his mind and says “ Never mind . I want that watch to go to my son instead .” The gift is revoked , and even if John dies during the surgery , William has no right to the watch and he must return it .
( Ex . 2 ) John survives the surgery and recovers from his illness . The gift of the watch is automatically revoked and William must give it back .
( Ex . 3 ) John dies in surgery . The gift of the watch is complete and William can keep the watch .
( Ex . 4 ) John survives the surgery but is hit by a car leaving the hospital and dies prior to revoking the gift . Is death from other than the contemplated present illness or impending danger sufficient grounds to complete the gift ? Maybe . Compare Ridden v . Thrall , 7 N . Y . S . 822 ( NY 1889 ) wherein the court held : “ Our view is that such a gift is only defeated by a revocation in the life-time of the donor , or recovery from the illness or escape from the danger in view at the time of execution of the gift ; and , if death intervenes , from a sudden and unforeseen cause , before such recovery or escape , the gift stands complete , and the title vests absolutely in the donee . A different conclusion would defeat the intention of the donor , which the law is careful to execute .”
( b ) John is severely depressed and is considering suicide . Before he shoots himself , he calls over his friend , William and says “ You ’ ve always been a good friend William . Here , take my Rolex watch .” He then gives William the watch .
( Ex . 5 ) John does not commit suicide . The gift of the watch is automatically revoked and William must give it back .
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PBCBA BAR BULLETIN 18