Deathbed gifts in a digital age

Anjali Narshi, contentious probate specialist in Lodders’ Dispute Resolution team, explains the requirements of a deathbed gift and provides an overview of the landmark case of Rahman v Hassan 2024.

What is a deathbed gift?

Deathbed gifts, also known as a  donatio mortis causa, are gifts made in anticipation of death. It is a mechanism by which people can make gifts that will take effect on their death outside of the provisions of their will or intestacy rules.

Originating from Roman law, deathbed gifts are usually best avoided as they can be complicated and hard to prove if those entitled under a  will or intestacy decide to dispute them. This is because there is typically nothing in writing for these gifts and usually no other witnesses to them being made aside from the recipient, making them tough to prove in court.

Requirements for a deathbed gift

For a deathbed gift to be considered valid, there are four conditions that must be satisfied. These are:

• The person making the gift must believe that their death is imminent, and the beneficiary of the gift must be able to prove this
• The gift is conditional on the donor’s death and can be revoked if they do not die
• The donor must deliver or part with the gift or something that controls the gift – this could include keys to a vehicle or property, documents, etc
• The gift must be an item or asset that is capable of being given away

The case of Rahman v Hassan

The recent case of Rahman v Hassan demonstrates the challenges involved in proving the validity of deathbed gifts. Al Mahmood had made a will in 2015, leaving his UK estate to his family – his late wife’s three nieces and her brother, Dewan Raisul Hassan (the defendants). However, in 2020, he made a deathbed gift of various  assets, including his house and two leasehold properties, to his close friend, Masudur Rahman, (the claimant) instead.

Mahmood was aware that he was gravely ill and had little time left, so he instructed his will writer to prepare a new will, giving these assets to the claimant upon his death. Five days later, Mahmood handed over the Land Registry documents for all his UK properties to the claimant, who already possessed the keys to them. Additionally, Mahmood provided the claimant with login credentials for various online platforms, including his online banking.

The will writer was scheduled to execute this new will but was unable to find witnesses. It seems the will writer was unaware that, due to COVID-19, wills could be witnessed via video.

Although the will was not formally executed, Mahmood was intent on making his wishes clear. On the day of his death, he sent a text message to both the will writer and a friend, stating that he had revoked his previous will and that all his UK assets should go to the claimant. The High Court confirmed Mahmood as the author of these messages and deemed the deathbed gifts valid.

Further developments

In August 2024, the High Court permitted the defendants to appeal the original decision in the case. The primary grounds for appeal included whether the handing over of land certificates (for registered land) and copies of leases constituted an effective land transfer , given that the Land Registration Act 2002 contains a requirement that a transfer of land can normally only be executed by deed. The defendants were also seeking to challenge the finding that handing over bank details and passwords is sufficient to part with ‘dominion’ over those bank accounts.

The High Court was satisfied that the handing over of the land certificates and leases was a sufficient act and by delivering them to the claimant, Mahmood meant to give the house and the flats to him. The fact that the house and leases were registered, did not prevent the transfer from being effective – because the intention to affect the transfer on death was present.

The High Court highlighted the importance of hearing the appeal due to the novel issues it raises regarding bank accounts and registered land, stating that: “Even if there were no real prospect of success on them, their novelty and their increasing importance in modern society provide a compelling reason for appeals on these points to be heard.”

The decision is likely to raise questions by personal representatives about how they can be sure whether a property has been subject to a valid death bed gift. It is also likely to lead to an increase in potential claims.

The High Court has given permission to the defendants, subject to costs conditions, to appeal the decision to the Court of Appeal.

Navigating deathbed gifts

Deathbed gifts are made when an individual is at their most vulnerable and therefore can be hard to prove and easily disputed. Much will depend on the specific facts and evidence available. It is therefore important to seek specialist legal advice if you have any concerns about deathbed gifts or if they are being challenged.

Please do not hesitate to get in touch with Lodders’ disputed wills and estates experts should you have any further questions.