CASE NOTE: Bayliss v Public Trustee (1988) 12 NSWLR 540

In this case, an elderly lady Mrs Martin had been living alone. On 21 December 1984, she executed her final Will which she instructed to leave subsequent legacies to friends, relatives and to her church. She also appointed the Public Trustee as her Executor.

Mr and Mrs Bayliss were her neighbours and visited her daily towards the end of her life. Mrs Martin was grateful for their companionship and knowing she had a few weeks to live, she handed Mr Bayliss her Certificate of Title for her home in the presence of Mrs Bayliss. Mrs Martin said “I don't think I have long to go and I want you to have something when I go and this is for you… This is for both of you.” After a week or so of handing over the Certificate of Title, she passed away on 1 August 1985.

Following her death, Mr and Mrs Bayliff, (the plaintiffs) brought a claim against the Public Trustee as executor of Mrs Martin’s estate on the basis of a legal doctrine known as Donatio Mortis Causa (DMC). These types of claims are often referred to as a “deathbed gift.” This legal doctrine recognises a gift made in contemplation of imminent death. In Duffy v Mollica [1968] 3 NSWR 751, the court outlined three essential criteria for a valid DMC: 

1. The gift must be in contemplation of death;
2. There must be delivery of the subject matter of the gift, or transfer of the means to obtain it, or delivery of indicia of title; 
3. The gift must be conditional upon the death of the donor 

While English case law has recognised the doctrine of DMC to be inclusive of real property such as houses, Australian Courts have limited its application to personal property only. In this case, as the Certificate of Title was handed over without a duly executed transfer and since the subject matter was real property, the Bayliff’s claim was unsuccessful, and they were not entitled to Mrs Martin’s house.