Some Latin: Donatio Mortis Causa

The Latin phrase “donatio mortis causa” refers to a gift made by a person in his or her lifetime in contemplation of death with the intention that the gift does not became fully effective until he or she dies. For this concept to apply, the person making a gift must deliver it to the beneficiary, must do so in contemplation of death, and the gift is made in circumstances where it is apparent that it goes back to the person making the gift if he or she recovers.

The concept of donatio mortis causa is derived from Roman law, but is a part of our British Columbia common law. It is the kind of thing a lawyer learns in law school, and then stores it in the back of his or her mind as an interesting tidbit of information with little practical use. It is not a good estate planning technique. But every once in a while these old Latin phrases crop up in a modern case.

Kathryn Cripps died in Vancouver on December 9, 1998. She did not have any close relatives when she died. Nor had she made a will. She did have two close friends, Sally and Arthur Costiniuk, who had known her for over thirty years, and had assisted her with personal and household chores.

About a month before she died, Ms. Cripps gave Mr. and Mrs. Costiniuk the keys to her safety deposit boxes, and told them that if she ever needed them back, she would ask for them.

The day before she died, Ms. Cripps told the Costiniuk in the presence of witnesses that she wanted them to have everything. A lawyer was called to make a will, but when he arrived, Ms. Cripps was unconsciousness.

At the time of her death, Ms. Cripps’ safety deposit boxes held some personal papers, five BCRIC shares, stamps with a face value of about $2300, a Registered Retirement Savings Plan ("RRSP") receipt, and a State of Title Certificate to her house.

Mr. Justice Brooke of the Supreme Court of British Columbia found that Ms. Cripps intended to leave everything to Mr. and Mrs. Costiniuk, and that with delivery of the keys to the safety deposit box, she had made a gift donatio mortis causa of the contents of the safety deposit boxes. Accordingly, they were entitled to keep the contents of the safety deposit box including the stamps and the personal papers.

The Costiniuks’ victory was a small one. They were not entitled to the RRSPs referred to in the receipt. Nor were they entitled to Ms. Cripps’ home. Although Ms. Cripps had given them keys to her house several years before her death, she gave Mr. and Mrs. Costiniuk the keys so they could assist her. By giving them the keys the house, she did not give them possession of her house. Nor did delivery of the keys to the safety deposit box with the State of Title Certificate to the house satisfy the requirement that possession of the gift be delivered to the beneficiary.

Mr. and Mrs. Costiniuk appealed the judge’s decision that they were not entitled to Ms. Cripps’ home, but the British Columbia Court of Appeal agreed with the Mr. Justice Brooke’s decision that they were not.

You can read Mr. Justice Brooke's decision in Costinuik v. Official Administrator, 2000 BCSC 1372, here, and the Court of Appeal decision in Costiniuk v. Cripps Estate, 2002 BCCA 125, here.