A Recent Take On Death Bed Gifts – Rahman V Hassan (2024)

The doctrine of donatio mortis causa (which in Latin translates to ‘gift by reason of death’) (“DMC”) dates back to the Roman times, and given the statutory provisions of s9 of the Wills Act 1837 and s52 of the Law of Property Act 1925 (governing formalities of a Will and conveyances by deed), is there room for these death bed gifts in the 21st century?

For a DMC to be valid, there are 3 key components:

1. The donor must be contemplating their impending death
2. The gift is condition upon the donor’s death
3. The donor parts with dominion over the subject matter of the gift to the donee

These cases are few and far between and until recently, the court have not had to grapple with them for a long time.

Rahman v Hassan (2024)

This matter concerned the estate of the late Mr Al-Hasib Mian Muhammad Abdullah Al Mahmood. Mr Masudur Rahman was a relative/friend who befriended and became close to the deceased from 2011.

The deceased died on 23 October 2020 aged 82 years old.

Mr Rahman sought a declaration that the deceased had gifted him on 15 and 20 October 2020 all his assets in the UK (chattels, bank accounts and land, some of which were jointly owned or inherited from the deceased’s wife who died shortly before him). The estate was worth over £2,500,000

The deceased left a will made in 2015 which provided for the defendants (blood relatives of his late wife) to inherit, as they had no children of their own.

Mr Rahman claimed that the deceased had given instructions for a new will which left the estate in his favour but it was not executed in time before his death.

The case was heard over 4 days (in November and December 2023) and judgment was handed down in May 2024.

Questions that the court was called to answer were:

1. Was Mr Al Mahmood attempting to make a nuncupative will or a gift of his assets?
2. If a gift, was it made in contemplation of his impending death?
3. If a gift, was it made conditionally on his death?
4. If a gift, did Mr Al Mahmood deliver and “part with dominion” of the subject matter or some equivalent?
5. Was there any legal bar to the subject matter being subject to a donation mortis causa?
6. Did Mr Al Mahmood have capacity to make the gift?

First, though the court needed to distinguish the types of gifts which could be made including

a) An ordinary inter vivos gift
b) A donatio mortis causa (death bed gift)
c) A testamentary gift (i.e. gift by will)

Mr Al Mahmood wished his UK assets to go to the claimant rather than to the defendants. Amongst other things, by this time he had (i) told his friends that the claimant was (figuratively speaking) his son, and that everything was for him, (ii) allowed the claimant to receive and keep the purchase price of his wife’s former car, (iii) allowed the claimant and his wife to take possession of personal items belonging formerly to his wife, (iv) handed over documents andother items to the claimant (including documents relating to the properties referred to in paragraph 41 above), saying that they were for him, (v) given instructions for a new will entirely in the claimant’s favour, (vi) given the claimant information about accessing his bank accounts, and (vii) told him the contents were his

A number of crucial text messages were also sent by the deceased reflecting his intention.

The judge went to great lengths to review the cases in this area.

The judge held that on 15 October 20202 when bags of documents were given to Mr Rahman by the deceased, he was not attempting to make a gift but merely instructing Mr Rahman as to what he would receive under the new will (instructions for the same having been provided the same day).

However, on 20 October 2020 matters had changed. The new will had not been received for execution (the will writer needing to speak to the GP and secure witnesses, and being unaware that a lax in the rules for COVID was permitting virtual witnessing of wills). The deceased was now concerned he was dying very soon and handing over documents, as ell as security device, logins and password for online accounts, and as such firmly believed he was now making a death bed gift (as opposed to a nuncupative will).

He was ill, believed he was dying, and had given instructions to a professional will-writer for a new will. Unfortunately, this was during the Covid pandemic, and he became agitated because he had not received the new will. Understandably, he wanted to ensure that his donative intentions were effective. So he resorted to a gift to take effect on death. The whole point about the doctrine of donatio mortis causa is to provide a legal solution to a human need, when other legal institutions do not.

The Last Word?

This case was supposed to provide some clarity on whether registered land (like unregistered land) could be so gifted.

But permission has been granted to appeal the decision and so this question may not be as clear cut.

An appeal court will be called to look at

• whether land certificates or lease copies serve as indicia of title and not just evidence of ownership so that an intention to gift is a separate requirement for a DMC
• whether online bank account passwords and bank cards constituted indicia of title

This will be an important decision on the treatment of modern assets and how it can be applied to the historic rules of a DMC.

Our Dispute Resolution team offers expert legal guidance on complex matters like will disputes and inheritance claims. For professional advice on your dispute, contact our team on 0330 822 3451 or request a callback.