Report No. 110
32.3. Nature and Origin.-
Story in his Equity Jurisprudence points out that a gift of the nature provided in section 191 is a sort of amphibious gift between a gift during the life time and a legacy1.
The origins of the concept of donatio mortis causa are to be found in the Roman Law. The concept was found to be useful, and was adopted in English law. Following observations of Lord Cooper2 show the original rationale for the rule.
"Where a man lies in extremity, or being surprised with sickness and not having an opportunity of making his will, but lest he should die before he could make it, it gives by his own hands his goods to his friends about him. This, if he dies, shall operate as a legacy, but if he recovers, then does the property revert to him".
Thus, delivery takes the place of a formal will. Incidentally, at present, it is not necessary that the donor must be in extremis at the time when the gift mortis causa is made3.
1. Story Equity Jurisprudence, (1919), p. 256, para. 606.
2. Lord Cooper in Hedges v. Hedges, (1908) Precedents in Chancery 269; J. Gareth Miller Machinery of Succession, (1977), p. 275.
3. Note in (1965) 81 LQR 21, see para. 32.4 (a), infra.