DONATIO MORTIS CAUS A. (Latin.) A gift made in anticipation of, and con ditional on, the death of the donor, is called a donatio mortis causa.
If a person, in anticipation of death, draws a cheque and hands it to, say, his son, unless the cheque is actually or construc tively paid before death takes place, the gift is ineffectual. It cannot be paid by the banker after he has had notice of the drawer's death, and it does not form a charge upon the deceased's estate. But if the donee transfers the cheque to another party, for value, that party would have a claim upon the estate for the amount, though the banker would not pay it after notice of death.
There is, however, a difference between a cheque drawn by the donor, and one payable to the donor. In the former case " his own cheque is not property, it is only a revocable order " (Justice Buckley), but in the latter case it is the " indicia of title to property, which belonged to him " (justice Buckley).
When it is payable to the donor, the person who receives it obtains a good donatio mortis cans,i, and is fully entitled to the amount. not indorsed by the donor, it has been held that the recipient is entitled to require the indorsement of his legal representatives.
A bill, a promissory note, and a deposit receipt payable to the donor, and a bond and mortgage deed have also been held to form good subjects of gifts made in anticipation of death.
Although a cheque payable to the donor, or a deposit receipt, forms an effectual gift, a banker, with notice of the payee's death. wont] not pay such cheque or deposit receipt to the recipient of the gift (even if indorsed by the deceased donor), until indorsed by the legal representatives of the deceased.
A donatio mortis caits(1 is subject to pay ment of estate and legacy duty.