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Can You Make a “Deathbed Will”?
- Oct 11, 2024
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In Rahman v Hassan the Claimant sought declarations that an elderly gentlemen (Mr Al Mahmood) had made various transfers of assets to the Claimant “on his deathbed” and in contemplation of his death.
Gifts made in contemplation of death are referred to as donatio mortis causa (“DMC”). If they can be established, such gifts take effect without reference to a Will – they effectively take effect outside of the Estate of the deceased. Outside of legal circles these types of gifts are sometimes referred to as “Deathbed Wills”.
The Facts in Rahman v Hassan
Mr Rahman was originally from Bangladesh. He claimed to be a relative of Mr Al Mahmood, who also came from Bangladesh originally. The claimant asserted that he met the deceased and his wife in 2011, when he moved to London.
Over the years, Mr Rahman said, he got to know the deceased and his wife well. As they became older they came to rely on him for assistance. This only increased as they became unwell in the last years of their lives.
Mr Rahman claimed he spent increasing amounts of time with them, visiting them several times a week and often staying overnight. Eventually he moved in with them at their house in Mitcham. After the death of the deceased's wife, Mr Rahman’s own wife and child even moved in to that house with the deceased.
The deceased's wife died first, in October 2020. In her Will she left her entire estate to her husband. Unfortunately he died a little over two weeks later, on 23 October 2020.
Mr Rahman alleged that on 15 and again on 20 October 2020, the deceased did certain acts that amounted to a DMC. Mr Rahman said that the deceased, by this DMC, gave him all of his assets in the UK. These assets included personal belongings (or “chattels” as they are often called) various bank accounts, and numerous properties. This included, Mr Rahman said, assets that had belonged to the deceased’s wife and which he had inherited from her on her death.
The Defendants were relatives of the deceased’s late wife. They claimed to be entitled to the deceased’s Estate under his last Will, made in 2015. According to accounts filed during the proceedings, the UK Estate was believed to be worth in the region of £2.8m. They sought to dispute the existence and validity of the various gifts that Mr Rahman claimed by way of DMC.
How do you Establish a DMC?
In order to establish a DMC had arisen, Mr Rahman, as with all people looking to assert a DMC, had to show that certain requirements were met. Those requirements are:-
(1) The gifts alleged had to have been made in “contemplation of impending death” (and the person making the gift then must die);
(2) The gifts must have been intended to be revocable by the deceased at any time until his death;
(3) The deceased had to be shown to have “delivered” to the person receiving the gift the items in question, or some means of accessing or controlling them; and
(4) That the deceased had the required level of capacity required to make a valid DMC.
Court Decision
The court did not appear to have too much difficulty in establishing the limbs 1, 2 and 4 above. The Claimant’s evidence on what was said to him by the deceased was, broadly, accepted by the court, and there was no evidence before the court that the deceased lacked capacity to make the gifts. That being the case, the court was satisfied that the deceased had made gifts to him in “contemplation of impending death”.
Of crucial importance, the deceased was found to have given to the Claimant “all the security devices, logins and passwords that were needed for accessing his bank and similar financial accounts, telling him that everything was his”. He also gave to the Claimant “the land certificate for the house and all the documents relating to the flats in Sutton, telling him that they were for him.”
The third limb, however, called for a little more thought it would seem. After the implementation of the Land Registration Act 2002, Land Certificates had to a large extent become obsolete; they are no longer evidence of title – that is the Land Register itself – but they are still generally indicative of title. The question for the court to consider therefore was whether the deceased had “parted with dominion” by giving the Claimant the Land Certificates. After a lengthy consideration of the authorities (and various academic articles on the subject) the court was satisfied the Land Certificates were adequate for this purpose;
“…..at the end of the day, and as the Court of Appeal said in the Woodard case, the question is really one of evidence: with what intention was the document handed over? In my judgment, Mr Al Mahmood meant to give the house to the claimant.”
A Further Twist
Two months after the judgment was handed down, permission to appeal the decision was given by the trial judge, HHJ Matthews.
The Defendants sought permission to appeal on 8 separate grounds. There seems to have been little trouble in dismissing the suggestion HHJ Matthews was wrong to make numerous particular findings of fact. But on matters of general substance and points of law, the appeals were allowed.
That was not because HHJ Matthews had suddenly had a change of heart, or doubted the strength of his findings, but because the case touches on various technical points of law for which there is not a clear authority from an appellate court;
“ their novelty and their increasing importance in modern society provide a compelling reason for appeals on these points to be heard.”
Thoughts
There was some (inaccurate) reporting in the wider, non-legal press that Mr Al Mahmood had made a Will by sending a text message in this case. He had not; instead the text message he sent was merely one point of evidence of the “deathbed gifts” he had made to the Claimant.
You cannot make a Will by sending a text message, given it will not comply with the various requirements of the Wills Act 1837 (not least of all because it will not be signed by two attesting witnesses) and this case did nothing to alter this.
It will be interesting to see what the Court of Appeal has to say about this case in the fullness of time. Watch this space perhaps…..
Author
Daniel Edwards
Partner
brownejacobson.com