A donatio mortis causa is a gift made in contemplation of the death of the donor which is intended to take effect only if the donor dies. If the donor recovers from his or her illness, etc., or if the donee dies first, then the gift is to have no effect i.e. it is void. If the gift is made in contemplation of death, it is presumed to be a donatio mortis causa even if the donor does not say that the gift is intended to be conditional on death occurring.

Since the individual has given away these assets before his or her death, he or she is not able to dispose of them by will. They are therefore not `assets of which the deceased was competent to dispose'.

No gain /loss TCGA92/S62 (5)

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