PROPERTY CAPABLE OF
PASSING ON DEATH
WITHOUT A WILL
•Property is capable of passing
on death other than by will. It
may pass by: survivorship,
under a nomination and as a
donatio mortis causa.
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 Law Succession Act 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
• 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.
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 Law of
Succession Act. 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.
• 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 section 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.
DONATIO MORTIS CAUSA
• A donatio mortis causa is a gift made by
a person during their lifetime that is
conditional upon their death. It is
neither an inter vivos gift 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.
CHARACTERISTICS OF A
• cannot be revoked by a subsequent will. 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
• 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:
a) the gift must be made by the donor in the contemplation of death;
b) the gift must be conditional on the donor’s death;
c) the subject – matter of the gift must be declared to the donee;
d) and 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 Law of Succession Act.
Section 31 incorporates the conditions set
out in Cain vs. Moon (Supra).
• 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.
NOTE
• 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.
• The court followed Agnew vs. Belfast Banking Co
and in addition, held that the donation failed on
the ground of public policy. The legal portion
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 Law of Succession Act.
• 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.
• 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.
• 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 sane 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.
• 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
vs. M’Court (1893) 20 R 488) The Kenyan law on this
condition is section 31(d) and (ii). Section 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 section 31(ii) states that the
donor may at any time before his death lawfully request the donee to
return the gift.
• 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.
• 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.
