Author: Muhammad Faizan, Summer Student A donatio mortis causa is a gift made by a person in contemplation of their imminent death, which only takes effect upon the donor’s death. If the donor survives, the gift is automatically revoked. Although the doctrine originates from Cain v. Moon (1896) 2 Q.B. 283, which is an English case, it has been adopted by Canadian courts, including those in Alberta, with strict limitations. For such a gift to be valid, three criteria must be satisfied: Contemplation of Death: The donor must make the gift while genuinely contemplating their imminent death from a specific peril, such as illness or surgery. This does not require a certain expectation of death, but the possibility must be a motivating factor. Delivery: The subject matter of the gift must be delivered to the donee before the donor’s death. This delivery may be actual, symbolic, or constructive, but it must be sufficient to transfer dominion or control of the property to the donee during the donor’s lifetime. Conditional Nature: The gift must be made with the understanding that it is conditional upon the donor’s death. It must remain revocable while the donor is alive and become effective only upon death. Limitations In Alberta, the doctrine is applied narrowly, with particular attention to evidentiary standards. The burden of proof lies with the individual asserting the existence of a valid donatio mortis causa, who must provide clear and unequivocal evidence of the donor’s intent, delivery, and the conditional nature of the gift. Courts are reluctant to uphold such gifts if they conflict with a valid will or established estate plan unless all legal requirements are satisfied. Significantly, the prevailing judicial view in Alberta and across Canada is that real property cannot form the subject matter of a donatio mortis causa. This is due to statutory requirements for land transfers, including the need for registration under Alberta’s land titles system. As such, only personal property such as cash, jewelry, or share certificates, may validly be the subject of a deathbed gift. Potential for Disputes Legal disputes regarding donatio mortis causa can arise when there is a conflict between a donee’s claim and the provisions of the deceased’s will, or where other beneficiaries or dependants challenge the validity of the gift. Given the informal nature of these transfers and the potential for abuse, Alberta courts require evidence of intent and proper execution. Courts will not hesitate to reject claims that lack adequate delivery or documentation, or that undermine testamentary or statutory obligations. For questions regarding donatio mortis causa, please reach out to a member of our Wills & Estates team.