The High Court was faced with the question of whether a gift made in contemplation of death can override a will in Rahman v Hassan & others. The other aspect of the case was whether handing over ‘security devices, log-ins and passwords’ for bank accounts and ‘the land certificate’ for registered property amount to valid gifts in contemplation of death (donationes mortis causa).
Background:
Mr. Al Mahmood, a Bangladeshi national, and Mr. Rahman, also from Bangladesh, were friends and distantly related. The deceased, who died on 23 October 2020, had a substantial estate – the gross value for probate purposes was stated to be £1.4m, although the value could amount to £3.15m. The estate also comprised his wife's estate as she had had died two weeks earlier. The deceased's last will was dated 2015 in favour of the deceased's wife's brother and nieces.
However, during the COVID-19 pandemic, Mr. Al Mahmood expressed his intentions to make a new will, one that would leave his entire estate to Mr. Rahman who lived with and took care of him and his wife. The new will was not executed, although on the 15th and 23rd of October 2023, Mr. Al Mahmood allegedly gifted all of his assets, subject to the condition that the gift would only pass upon his death. He also sent a message to a will draftsman supporting Mr. Rahman’s assertion. He also gave all of his security devices, log-ins and passwords, as well as the land certificate for his house and deed for his flats. As there were no witnesses, these matters raised suspicion among the deceased’s family.
Decision:
The Court held that the deceased had made a valid deathbed gift of registered freehold and leasehold land, online bank accounts, and shares when, shortly before his death, he handed over to the claimant copies of a land certificate, land registration documents, bank cards, log-in details and pin readers with passwords, telling him it was all his. As a result, the assets gifted fall outside the deceased estate. The gifts were not deemed an attempt to make a nuncupative will.
HHJ Paul Matthews gave a detailed review of the development of the doctrine of donationes mortis causa and the three requirements. First is that the donor must have good reason to believe they are close to death (the contemplation of death element); second, that the gift must be conditional upon death and, finally; the donor must have ‘dominion over the subject’. In this case, the key witness was a will draftman who could confirm that Mr. Al Mahmood had instructed him to draft a new will naming Mr. Rahman as sole beneficiary and executor. As he was afraid he would die before being able to sign the new will, he handed various gifts which met the requirement of the donationes mortis causa except for the furniture and contents of the house which felt short on the ‘dominion’ aspect. He also had the capacity to make such gifts.
Regarding which assets could pass by deathbed gift, he held that, in principle, registered and unregistered land can be subject to this doctrine. He concluded that there was no absolute bar to company shares being subject to deathbed gifts, but rather that those assets are subject to special formalities which differ from others.
Implications:
This case offers a useful reminder of the requirements for a valid deathbed gift. It also clarifies the type of assets that are capable of passing through such gifts, especially regarding registered land.
The decision makes it clear that, even if the deceased did not have the land certificate, an official copy would have been sufficient. Moreover, it is now settled that donationes mortis causa can override a previous will if all the elements are present.
The Judge was very careful while evaluating the evidence showing the level of care needed to determine whether a donationes mortis causa is valid. The decision is also very well drafted with the Judge restating the questions in the conclusion and indicating which paragraphs answer the specific question. However, this case illustrates how deathbed gifts are still subject to challenge and their validity will depend on the prevailing facts.