Deathbed gifts, known as Donatio Mortis Causa or DMC claims, are subject to rigorous judicial scrutiny before they will succeed. The latest case to come before the Court was Rahman v Hassan, in which the Claimant was successful.
The physical gifting of assets (either by handing them over or by giving keys or title deeds) by someone who believes that they are likely to die in the near (but not immediate) future, without the benefit of a will, is a relatively unusual event. A particular feature of such a gift is that it is revoked if the donor does not die as anticipated or if they are pre-deceased by the recipient. The doctrine of Donatio Mortis Causa (DMC) roughly translates as ‘gifts in contemplation of death’, a subject that we covered in some detail in an article on our website. DMC cases do not come before the courts very often but when they do proving such claims depends on the judgment of the presiding judge who has to rely on the evidence set before them where often the only witness is the recipient of the gift. A recent case, Rahman v Hassan, illustrates the difficulty faced by judges when ruling on DMC claims.
A brief history of Donatio Mortis Causa
The origin of the doctrine of Donatio Mortis Causa lies in Roman law and was originally conceived as a practical solution to a specific situation such as the eve of battle whereby a participant needed to make an immediate gift in case they did not survive. The earliest reference to the doctrine in English law dates from the eighteenth century, in which it was described thus: "where a man lies in extremity, or being surprized with sickness, and not having an opportunity of making his will; but lest he should die before he could make it, he gives with his own hands his goods to his friends about him: this, if he dies, shall operate as a legacy: but if he recovers, then does the property thereof revert to him".
The doctrine has evolved over the 19th and 20th centuries and can be broadly defined as follows: “it is a gift made in contemplation of death, subject to a condition precedent, that is, that the donor dies. On death the condition is fulfilled and the property passes to the donee…Until that moment [of death] the gift is revocable.” The problem judges face when ruling on DMC cases is that the giving of assets under this doctrine is not governed by any legal safeguards provided by, for instance, the 1837 Wills Act or the 1925 Law of Property Act.
This difficulty was underlined by a 2015 case (King v Dubrey) in which a claimant successfully argued in the High Court that the donor had made a valid DMC of property to him. At appeal, the Court of Appeal disagreed, ruling that the claimant was ‘untrustworthy’ and had failed to satisfy the requirements of a DMC. Jackson LJ held that “considerable caution is required” since there are “no safeguards during a deathbed conversation”. This means that such cases rely on judges to scrutinise the evidence closely to ensure that the donor is not the victim of an unscrupulous operator intending to take fraudulent advantage of a vulnerable person.
A ‘modern formulation’ of DMC
King v Dubrey, among other cases (including Sen v Headley), has helped to clarify further the three requirements that must be satisfied for DMC to be proved. For the first, contemplation of death, the donor must have good reason to believe that they are close to death from a recognisable cause such as a terminal illness, rather than, say, old age. Second, the gift must be conditional upon death and revocable up until the point of death and it must be clear that any such gift is not a statement of testamentary intent. Third, the donee must have ‘dominion over the subject’. This means that the subject (i.e. the gift) must be physically delivered into the hands of the donee. If the actual item cannot be physically delivered (such a house, car, or money in a safe), then the means of accessing it, such as keys, title deeds (for unregistered property) or share certificates, must be.
Rahman v Hassan
The case of Rahman v Hassan is the most recent DMC claim to be heard in the High Court. It came before HHJ Paul Matthews in December 2023 and he handed down his judgment in May 2024, in which he expounded at length on the background to DMC and how the ‘modern formulation’ of the doctrine evolved.
The facts: The donor in this case, Mr Al Mahmood, lived in London with his wife but they had no children. In 2015 they made a will in which relatives of Mrs Al Mahmood (who lived in the US) were named as beneficiaries. The claimant in this case, Mr Rahman, a distant cousin of Mr Al Mahmood, had come to London from Bangladesh with his family. Because of the family connection, Mr Rahman visited the Al Mahmoods and their relationship gradually developed to the point where he and his wife were regularly helping Mr and Mrs Al Mahmood with various tasks which they increasingly valued as they got older and their health deteriorated.
In September 2020, the Rahmans were invited to move into Mr and Mrs Al Mahmood’s house to provide round the clock help. Shortly afterwards, Mrs Al Mahmood was admitted to hospital where she died, having left all her assets to her husband in her will. Mr Al Mahmood relied heavily on Mr Rahman in the aftermath of his wife’s death. Mr Al Mahmood’s health declined significantly and he died a fortnight after his wife. Mr Rahman pursued a claim relying on the fact a ‘death bed gift’ had been made to him. Mrs Al Mahmood’s US relatives had obtained probate for Mr Al Mahmood’s 2015 will and were suspicious of the circumstances behind Mr Rahman’s claim.
Outcome: Although friends of Mr Al Mahmood could confirm his spoken intention to leave his UK property (amounting to some £1.4m) to Mr Rahman, it was a will draftsman, Jonathan Amponsah, who was the key witness. He confirmed that Mr Al Mahmood had instructed him to draft a new will on 15 October naming Mr Rahman as sole beneficiary and executor. Mr Al Mahmood, believing that he would die before he was able to sign his will, handed Mr Rahman various gifts including a land certificate, and login details and passwords for various accounts. Mr Amponsah was able to prove that he had received texts from Mr Al Mahmood on 22 October, shortly before he died, confirming his intention to execute this new will in favour of Mr Rahman.
In summary
Having considered all the relevant issues, HJH Matthews, in a reserved judgment, ruled that Mr Rahman’s claim succeeded on the basis that Mr Al Mahmood had capacity, he had physically gifted his UK assets (save for furniture and house contents) to Mr Rahman in contemplation of his death and had done so conditionally on his death. The careful evaluation of the evidence in this case underlines the care a judge will take to ascertain whether or not all the requirements to prove a DMC claim are present. Given the lack of legal safeguards accompanying a DMC claim, this careful scrutiny is essential to guard against dishonest claimants or the inappropriate validation of incorrectly drafted wills.
In his final judgment handed down on 1 August 2024, HJH Matthews granted Mr Al Mahmood's relatives leave to appeal on five grounds, one of which relates to the novel issues around applying the doctrine of donatio mortis causa to bank accounts and registered land. He added: '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.’
In addition, he also decided on several costs-related matters including whether the Personal Representatives appointed to administer Mr Al Mahmood’s will are able to claim any costs incurred in relation to assets they mistakenly believed formed part of the estate. HJH Matthews, referring to the case of Travis v Illingworth 1868, decided that they are, in principle, entitled to claim for properly incurred expenses and liabilities out of the estate as they had made a bona fide mistake, having ‘intermeddled’ in good faith.
We will continue keep this case under review as it goes to appeal.
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