Touch of Death 's instant kill is not working when a mob has less than your max health. It instead only seems to work at about 50% of max health.
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Same thing is happening to me.
In Torghast, I am only able to use ToD when the mob is at 15% or at 22k or less health.
Outside of Torghast, it’s sporadic, and many times I can use it when the mob is at 70%+ and above my max health, thus not killing the mob.
It happens with both the Touch of Death Legendary and the Stormstout Keg Legendary.
Ditto. Seems to want to work at times, sometimes it will light up on enemies like they have less health than you but only get half their health taken away instead of just dying like most weaker enemies have happen to them. Though I have no idea if that is due to it activating on enemies before they are in more executable range with it, or if the thing is just not doing the correct damage.
It’s been happening in Torghast to me as well. I get enough stamina to have 100k health and mobs are still only ToD-able if they’re under 22-30k health.
I wonder if this is an intentional nerf to the ToD because of Torghast.
I noticed this when fighting elites vs non elites
Tod would activate, i would use it, but it doesn’t finish off the elite mob, even when they have less health than me.
I made a post in the bug report forum about this, if anyone has different experiences than what i posted there please add to it to help get it fixed sooner. rip my torghast tod build 
Yeah this skill is all over the place right now. It’s not even a consistent bug. Sometimes it’ll activate at 90% mob health and do the fraction damage.
Well it sure as hell worked on me in an arena the other day.