Deathbed gifts dramatically change the effect of a will in England & Wales – justice or abuse?

A Judge has granted permission to appeal his decision in a case which has attracted widespread – if not always accurate – media attention as supposedly featuring a testator 'changing his will by text message'.

In fact the case involves the very different concept of a deathbed gift.

What is a deathbed gift?

A deathbed gift, or 'donatio mortis causa', is a long-established doctrine allowing someone to give assets without making a new will.  

It must be made in contemplation of impending death, and is conditional upon the testator dying (so, for example, if the donor recovers from the illness which prompted the gift and no longer believes they are about to die, ownership of the asset returns to them).  

The donor must part with 'dominion' over the asset in some way, either by handing over the item itself, by giving the donee something which controls access (eg the key to a locked box containing the gift), or something which evidences title (eg a share certificate).  Often it means that legal title (eg the name on the share certificate) is unchanged.

The capacity required to make a deathbed gift is the same as to that required for any other lifetime gift.  What makes this case so interesting is the way it applies the doctrine to the less tangible way people now tend to hold property, including digital property – where it might be thought there is nothing physically to hand over. 

The facts

Mr Al Mahmood made a will in 2015 leaving his assets to relations of his wife who lived in the US.  

He was also a distant cousin of Mr Rahman who, along with his wife, became the couple's close friends and caretakers: they did the shopping, helped with tasks such as cleaning, laundry, and gardening, and stayed overnight if Mr or Mrs Al Mahmood were unwell or had early appointments with which they needed help.  Mr Al Mahmood attended Mr Rahman's graduation ceremony and wrote a letter of recommendation to the Home Office when Mr Rahman needed assistance with his immigration status.  

Mrs Al Mahmood died in October 2020 and her husband was greatly affected by her death.  He had a number of serious health conditions of his own and became fatalistic, believing he had only a short time more to live.  He wanted to put his affairs in order and told visiting family members and friends that his UK property was 'all for Masud' ie Mr Rahman.  

On Mr Al Mahmood's instructions, Mr Rahman contacted a will draftsman, Mr Amponsah, who visited Mr Al Mahmood at home.  Mr Al Mahmood told him that he wanted Mr Rahman to be the sole executor and beneficiary of his new will.  He said that the existing family beneficiaries in the US 'were not interested in him and he was not interested in them, as they did not come to visit and help out' and of Mr Rahman, 'Who else would it be?'

After Mr Amponsah had gone, Mr Al Mahmood asked Mr Rahman to bring down some bags from his upstairs office. Mr Al Mahmood opened the bags and explained that they contained documents relating to home and two flats which he owned in Sutton, a large number of bank accounts, and a share-dealing account with Hargreaves Lansdown.  He took Mr Rahman through all the documents and explained each one, saying that he was getting old and would die soon, and he would be giving all these assets to Mr Rahman.  Mr Rahman then replaced the bags in the office.

Mr Al Mahmood began to refer frequently to his own death, eat and drink very little, and eventually stopped taking his medications.  

Shortly before he died, when Mr Rahman reminded him that the next appointment with the will draftsman was not for another two days, Mr Al Mahmood asked Mr Rahman to bring him the bags again.  This time, Mr Al Mahmood explained all the login details for the online accounts and this time handed over bank cards, cheque books and login devices, pin readers and other security items to Mr Rahman.  He said that Mr Rahman now had access to all his accounts and that everything was his.  He also gave Mr Rahman the registered land certificate for his home, told him where the spare keys were, and the long leases of the flats in Sutton and documents relating to the leasehold title.  He said that the house and flats were for Mr Rahman.  

On 22 October 2020 Mr Al Mahmood asked Mr Amponsah to come over to get 'the will done now'.  Shortly afterwards a text message was sent from Mr Al Mahmood's phone to Mr Amponsah reading 'I agreed that Masudur Rahman will be the absolute own of all my assets and the executor of my new and last will. This is my final word. I revoked all my previous will done by me and my wife. It’s a difficult time for me. Please help Masud.'  

Shortly after midnight on 23 October 2020, Mr Al Mahmood sent a text to a friend: 'Sayam, pray for me. Masud is my son. He is the absolute owner of all my assets. This my final word.'  

Mr Al Mahmood died a few hours later.

Mr Rahman claimed that the bank accounts, Hargreaves Lansdown account, and properties were all valid deathbed gifts (which would have rendered the estate effectively empty).

There was no evidence that Mr Al Mahmood lacked capacity.  The Judge was satisfied that by the time he died, Mr Al Mahmood wanted his UK assets to go to Mr Rahman rather than the family in the US.  The question was whether his attempts to achieve this had had the desired effect.

Were the gifts valid?

The Judge found that Mr Al Mahmood had successfully made deathbed gifts of his bank accounts, Hargreaves Lansdown account, and properties (though not the contents).

Importantly, the Judge considered what is required to 'part with dominion' of assets such as these in circumstances where the majority of people will no longer have tangible signs of ownership, for example title deeds or bank passbooks, to hand over.  

The Judge confirmed that registered land can in principle be the subject of a deathbed gift.  Whilst documents such as land certificates and Land Registry office copy entries do not have any legal function in transferring the ownership of registered land, the Judge held that the relevant question is the donor's intention: was the donor handing over the document with the intention of giving the property to the donee?  

The Judge then considered how the concept of deathbed gifts applies to modern online financial accounts accessed by electronic tokens and passwords.  He held that, whilst it is true that an account-holder could tell someone their login details and password in order to make a single transaction at the account-holder's direction, the key point is again the intention.  Importantly, Mr Al Mahmood could not possibly have memorised all the logins and passwords on the list which he gave Mr Rahman.  By handing over the papers to Mr Rahman, he had practically-speaking made it difficult if not impossible to deal further with the accounts himself. 

Conclusion

Mr Rahman's case clarifies how the deathbed gift doctrine operates in the modern age.  However, every deathbed gift will be different and must be considered on its own facts.

By their very nature, deathbed gifts are often made – or alleged to have been made – when the donor is vulnerable.  Judges will look carefully at all the circumstances to ensure that the doctrine is not abused by unscrupulous 'donees'.  

Here, Mr Al Mahmood's intention to benefit Mr Rahman was clear: he had communicated it not just to friends and the will draftsman in person, but via text.  

But watch this space – it was reported this week that the trial judge has granted permission to appeal.