Ways Of Passing Property on Death other than by Will

Property is capable of passing on death other than by will.  It may pass by:
  • Survivorship,
  • Under a nomination 
  • As a donatio mortis causa

(a) Survivorship
This applies in cases of joint tenancies, that is where property is jointly owned.  Where a co-owner of property is a beneficial joint-tenant of the property, whether real or personal, their interest will automatically pass to the surviving joint tenant(s) on their death by virtue of that principle of survivorship – the principle of jus accrescendi. Upon the demise of one of the tenants, that tenant’s interest would merge with that of the surviving tenant. For example, where the matrimonial home is held by a husband and wife as joint tenants and the husband predeceases the wife, the house will pass to the wife by reason of the survivorship.

The principle of survivorship operates to remove jointly owned property from the operation of the law of succession, upon the death of a spouse who jointly owns property with the other spouse their interests unite and the property passes to the surviving spouse. It does not form part of the deceased spouse’s estate and it cannot pass by that deceased spouse’s will. This contrasts with the operation of the principle of tenancy in common.  The interests of common tenants are clear and distinct.  The interests are not united.  In the event of the death of the one tenant, there is no merger or union of interests.  The beneficial share of a common tenant who is deceased can pass under their will. Survivorship is disadvantageous thus if joint tenants are not spouses.

The LSA at section 43 provides that for the purposes of determining survivorship in the event of two or more persons dying simultaneously it shall be presumed that the deaths occurred in order of seniority with the younger person surviving the older person, but in the cases of spouses, it shall be presumed that they died simultaneously. Such property in the case on non-spouses should devolve to different people upon the tenant’s death, it is therefore necessary to determine who died first.  In the case of spouses, the property should pass to their children or to the same dependants it would not matter therefore who between husband and wife died first.

The RLA (Cap. 300) deals with joint ownership.  S 101(1) of the RLA stipulates that in an instrument made in favour of two or more persons the registration shall show whether such persons are joint proprietors or proprietors in common.  Under section 102 (1) of the RLA it is stated that where land, lease etc. is owned jointly no proprietor is entitled to any separate share on the land, and consequently: a disposition may be made only by all the joint proprietors and on the death of a joint proprietor his interest shall vest in the surviving proprietors jointly. The Indian Transfer of Property Act (Group 8 statute) does not make a reference to joint tenancies but Ss 44, 45 and 46 deal with comparable situations.

(b) Nomination
A nomination is a direction by a person, called the nominator, to another who is holding investment on their behalf, to pay the funds on the nominator’s death to a third party, called the nominee, nominated by the nominator during the nominator’s lifetime. The direction is made by the nominator during the nominator’s lifetime, but like a will, the gift only takes effect upon the death of the nominator.

Nominations operate under the rules of a particular scheme and although it does dispose of property upon death, it does not comply with the formalities of the LSA. The property the subject of a nomination does not form part of the nominator’s estate, and it cannot therefore pass under a will.  It does not vest in the personal representatives of the deceased, as it does not form part of the nominator’s estate. Consequently, the payer (i.e. – the person having the investment) does not require a grant (of probate or letters of administration) before paying the funds to the nominee.  The direction is to pay only on death and therefore the payer will want to see the nominator’s death certificate before making payment.

As with the beneficiary under a will, the nominee does not have an interest in the nominated funds during the lifetime of the nominator, who may deal freely with the property at any time during their life. A nomination may be revoked by: a later nomination; the subsequent marriage of the nominator; and the death of the nominee prior to the death of the nominator. A nomination cannot be revoked by a subsequent will or codicil.

In Kenya, nominations are made mainly with respect to savings and investments in co-operative societies and provident or pension schemes.  The Co-operative Societies Act 1997 (Act No. 12 of 1997) provides in S 39(1) that on the death of a member, a co-operative society may transfer the share or interest of the deceased member to: a person nominated in accordance with the Act or the rules made under it; or if, no person has been nominated, to such person as may appear to be the personal representative of the deceased member.

(c) Gifts in Contemplation of Death (Donatio mortis causa)
A donatio mortis causa is a gift made by a person during their lifetime that is conditional upon their death in the sense that the property does not pass to the donee until the death of the donor.  It is neither an inter vivos gift (where there is delivery and transfer of ownership of the property during the lifetime of the testator) nor a testamentary gift.  Buckley L.J. in Re: Beaumont (1902) 1 Ch. 889 at page 892 said of donatio mortis causa: “It may be said to be of amphibious nature being a gift which is neither entirely inter vivos nor testamentary”.

A donatio mortis causa is similar to a lifetime gift in that the subject matter of the gift is delivered to the donee during the donor’s lifetime, but the gift takes place upon the death of the donor. A gift in contemplation of death is outside the ambit of the LSA and cannot be revoked by a subsequent will or codicil.  It cannot be given away as a gift under a will to someone else.  It is not free property it cannot therefore be the subject of a will.  This means that if a donor delivers property during their lifetime, with the intention of making the gift conditional on death, and then thereafter makes a gift of the same property by will to another person, the beneficiary named in the will receives nothing.

As donatio mortis causa is not a testamentary gift the subject matter cannot form part of the deceased’s estate upon death, but if the estate proves insufficient to pay the deceased’s debt(s) the subject matter of a donatio mortis causa may be used. Re Korvine’s Trust (1921) 1 Ch 343.  Under the LSA for the purposes of part II which deals with reasonable provisions in determining whether reasonable provision was made for a dependant under S 26 of the LSA, the court may take into account the gift made in contemplation of death and whether it may have influenced the testator not to provide for the dependant under the will.

Lord Russell in the case of Cain vs. Moon (1896) 2 Q. B. 283 set down the conditions which need to be satisfied for a valid donatio mortis causa, namely:
1).     The gift must be made by the donor in the contemplation of death
2).     The gift must be conditional on the donor’s death
3).     The subject matter of the gift must be delivered to the donee
4).     The property must be capable of forming the subject-matter of a donatio mortis causa. The burden of proving that all four conditions have been met lies with the donee

Donatio mortis causa or gifts in contemplation of death are dealt with by section 31 of the LSA.  Section 31 incorporates the conditions set out in Cain vs. Moon (Supra).

The Gift Must Be Made By The Donor In The Contemplation Of Death

With regard to the condition (a), section 31(a) provides that a gift in contemplation would be valid if the person making the gift is at the time contemplating the possibility of his death because of a present illness or present or imminent danger. The death of a donor need not be imminent, but the donor must believe that they are dying or they are likely to die in a particular way e.g. they may believe that they are dying from a terminal disease or at risk of dying from a dangerous expedition.

It is generally irrelevant that the donor dies from some cause other than the one within their contemplation so long as the condition from which the deceased thought he was dying continued up to the date of the donor’s death.  Section 31(e) provides that the gift would be valid if the person making the gift dies from any cause without having survived the illness or danger. Wilkes vs. Allington (1931) 2 Ch. 104 This condition was deemed not even though the deceased thought he was going to die of cancer but in fact died of double pneumonia.  The gift would fail if the donor survives the contemplated illness or danger but dies of a different cause.

The condition that the gift be made in contemplation of death cannot be satisfied where the donor contemplates their own death by suicide, section 31(c) provides that no gift made in contemplation of death shall be valid if the death is caused by suicide. Agnew vs. Belfast Banking Co. (1896) 2 IR 204 Held it was against public policy to uphold a gift which was intended to take effect by means of suicide. Re: Dudman (1925) 1Ch. 553 reaffirmed the same position. The legal position stated in these two cases is no longer valid in England following the enactment of the Suicide Act, 1961 that decriminalized suicide.  The Pre-1961 position in England is still the law in Kenya by virtue of section 31(i) of LSA. 

The contemplation of death may be expressed or implied from the circumstances. In Lillingston (1952) 2 All E. R. 184 the donor expressed opinion that she was “done for” and the court inferred that the gift was made in contemplation of her death.

The Gift Must Be Conditional On The Donor’s Death

If the donor does not die, the gift will not take effect and the donor will be entitled to recover possession of the property from the donee as the gift must be conditional upon the death of the donor.  A gift can expressly be stated by the donor to be conditional upon death.  It may also be implied from the circumstances.  The courts are likely to imply that the gift is conditional on death if it is made in the last few days of the donor’s final illness.  The gift should always be made orally or verbally as opposed to in writing. Where a gift in these circumstances is made in writing as opposed to orally it is presumed by the court that the gift is not a donatio mortis causa, but either an attempted lifetime gift or a failed testamentary gift. (See Edward vs. Jones (1836) 1 MY & CN 226).

A gift in contemplation of death should be distinguished from an oral will in that an oral will is usually not made in contemplation of death. The failure of the contemplated death to occur leads to the termination of the gift in contemplation of death, the same does not apply to an oral will. In In the Matter of the Estate of Tabutany Cherono Kiget (deceased) Kericho HCP&A No. 157 of 2001, Kimaru J appeared to use oral will and gift in contemplation of death interchangeably, yet the two are separate and distinct.

The distinguishing feature is the issue of delivery. There is actual delivery of the property in an oral will. Another feature is a gift in contemplation of death can only be in respect of moveable property BUT in an oral will, it can both be moveable and immoveable.

For the gift to be said to have been made conditional upon death, the death of the donor should not be a certainty, as there is a possibility that the gift can be revoked by the recovery of the donor. (See Lord Advocate v  M’Court (1893) 20 R 488) The Kenyan law on this condition is S 31(d), (ii). S 31(d) provides that a gift in contemplation of death would be valid if the donor makes the gift in such circumstances as to show that he intended it to revert to him should he survive the contemplated illness or danger.

A donatio mortis causa is revocable and S 31(ii) states that the donor may at any time before his death lawfully request the donee to return the gift.

The Subject Matter Of The Gift Must Be Delivered To The Donee

The donor must have handed over to the donee or his agent the subject matter of the gift or the means of controlling it.  The donor must have parted possession with or parted with dominion over the subject matter of the gift. Section 31(c) of the Act states that a gift in contemplation of death would be valid if there is delivery to the intended beneficiary of the possession of the property or of the documents or other evidence of title of the party.

In Wildish vs. Fowler (1892) 8 T.L.R 457 a landlady was handed property by her sick tenant with instructions “take care of this”.  It was held there had been no donatio mortis causa of the property as the donor had not parted with dominion over the property.  The property was delivered merely for the purpose of safe custody.

In Cain vs. Moon (1896) 2 QB 283 the donor originally delivered a deposit note to her mother for safe custody.  She later became very ill and at a time when it was likely that she was going to die she told her mother that the deposit note along with other property was to be the mother’s should she die.  It was held that there was effective delivery of the property. 

In Woodward vs. Woodward (1992) RTR 35 (Court of Appeal) a father handed over keys to his car to his son at a time when he was seriously ill, but the father kept a duplicate set.  It was held that the father had effectively parted with dominion over the car because in the circumstances he was so ill only the son had access to the car.

The Property The Subject Of The Gift Should Be Capable Of Being The Subject Matter Of Such A Gift
It should be capable of being donated. Section 31(b) of the Act provides that a gift in contemplation of death would be valid if a person gives movable property that he could otherwise dispose of by will. Property that cannot be disposed of by will cannot be donated.  A testator can only dispose of free property by will, therefore only free property can be subject of donation.

Cheques and promissory notes drawn by the donor cannot be a donatio mortis causa. It was held in Re Beaumont (1902) 1 Ch. 889 that a cheque cannot form the subject of a donatio mortis causa as it is not enforceable without consideration.  It was held similarly in Leaper (1916) 1 Ch. 579 with respect to a promissory note.     

It was suggested obiter dicta in by the House of Laws in Duffield vs. Elwes 1827 Bli NS 497 that the land either freehold or leasehold could not form the subject matter of a donatio mortis causa. The Law of Succession Act appears to imply that this dicta is the law in Kenya as section 31 only covers moveable property.  Section 31(b) provides that a gift in contemplation of death would be valid if a person gives movable property (not immovable) which he could otherwise dispose of by will. The most recent English decisions however suggest that unregistered freehold property could form the subject matter of a donatio mortis causa.

The gift would not be effective where the donee predeceases the donor.  Section 31(f) provides that the gift would be valid if the donee survives the person who made the gift to him. If the intended donee predeceases the donor, his estate would have no cause of action against the estate of the donor.


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