Article: Donationes Mortis Causa of Real Property: Missed Opportunities and Foreclosed Possibilities

David Pittavino (University of New South Wales) and Xavier Walsh (Independent) recently published, Donationes Mortis Causa of Real Property: Missed Opportunities and Foreclosed Possibilities, 2024. Provided below is an Abstract:

The doctrine of donatio mortis causa defies and problematises the taxonomy of the common law. It stands both as an archaic monument to Western legal thought several millennia old, and as an informal, intimate, and human mode of disposition of property in the face of death. In New South Wales, there is stark resistance to extending the doctrine to gifts of real property. This article examines the justifications usually proffered for that resistance; critiques the strengths thereof; and argues that none, as a matter of doctrine, survives proper scrutiny. Part I of this article outlines three common objections raised against donationes mortis causa of realty, and contends that each fails fully to accord with fundamental tenets of the doctrine, in both its historical and contemporary contexts. Part II of this article explores the place for donatio mortis causa in the era of e-Conveyancing, and suggests that, in relation to Torrens Title land, any room left for the doctrine is now confined to circumstances where a donor transfers legal title to the property to the donee, revocation of which may give rise to an in personam exception to indefeasibility of title.