Rahman v Hassan: Requirements for a Death-Bed Gift

The recent case of Rahman v Hassan & Ors [2024] EWHC 1290 (Ch) considered whether a gift made in contemplation of one’s imminent death could override a valid will. The claimant, following the death of his friend, brought a claim against the estate on the grounds that the deceased had made a deathbed gift to him of all his UK assets.

What is a deathbed gift?

A deathbed gift (donatio mortis causa) is a legal principle which originated in Roman law. The Latin phrase means “gift in contemplation of death” and was described in Thomas’ 1978 Textbook of Roman Law as a gift that may have been made in the event of a serious illness, or on the eve of a battle, and became absolute only upon the death of the donor. The gift could be revoked at any time and would only be effective if the donor actually died. The idea is that a gift could be made with the intention of overriding an existing valid will in the event that death is imminent, and the donor does not have time to execute a new will. 

Requirements for a deathbed gift to be valid 

These requirements have been discussed in case law and it is considered by the courts that in order for a deathbed gift to considered valid, the following conditions must be satisfied:

1. The person making the gift must believe that their death is imminent. This is subjective and if the gift is challenged, the burden of proving that the donor did anticipate their death is on the beneficiary.
2. The gift can be revoked by the donor until they die and is automatically revoked if they should recover and survive. Therefore, the gift is conditional on the donor’s death.
3. The donor gives “dominion” over the subject of the gift in some way. They must either actually give it to the donee or give something to them that provides access to the gift. For example, documents that evidence the right to possess it.
4. The gift must be an item or asset that is capable of being given.

Rahman v Hassan – The Facts

The claimant had been a friend of the deceased, Mr Al Mahmood, and his wife for many years, since relocating to England from Bangladesh in 2011. He called them “Uncle” and “Aunty” even though they were not biologically related and provided them both with assistance as they grew older, which they came to rely on. The claimant would visit several times a week and sometimes stay overnight.

“Aunty” sadly passed away on October 6, 2020, leaving her estate to her husband in its entirety. She and the deceased had mirror wills executed in 2015, leaving their estates to each other and in the alternative to the defendants. It was expressly provided that the wills were not “mutual wills” and that they were both free to revoke their wills at any time. Now that his wife had passed away, Mr Al Mahmood’s substantial estate would pass to the defendants, who were relatives of his late wife (her brother and her nieces) but not of Mr Al Mahmood himself.

After the death of Mr Al Mahmood’s wife, the claimant, his wife, and their child moved in with the deceased. He gave the claimant £25,000 and asked him to organise his wife’s funeral for him, which the claimant did. When friends of his and his wife’s attended their home to pay their respects, Mr Al Mahmood told several of them that the claimant was figuratively his son and would benefit when he died. He told a family member of his wife in Bangladesh that all his UK property was for the claimant.

Mr Al Mahmood was suffering from a number of serious health conditions and was emotionally weak following his wife’s death. He had expected his wife to live longer than him, being that she was seven years younger. The judge describes him as “fatalistic” and states that he wanted to put his affairs in order, believing that he only had a short time more to live.

An appointment was arranged for a will writer to attend Mr Al Mahmood’s home on 15 October 2020, so that he could give instructions for a new will. He also gave many of his wife’s belongings to the claimant’s wife and told friends how he missed his late wife and was now focused on the claimant and his family. He described the claimant as his son.

Instructions were taken for a new will, and the claimant was to be the sole executor and beneficiary. The will writer planned to speak with Mr Al Mahmood’s GP and then return to him on 22 October 2020 with the new will for execution. In evidence, the will writer was clear that he was being cautious due to Mr Al Mahmood’s ill health, and that at no time did the claimant seek to influence the deceased.

After the meeting, Mr Al Mahmood told the claimant to go and get some bags from his upstairs office. He showed the claimant documents relating to his assets and told him that he would be receiving everything when he died. In the following days, he referred to his death often, and stopped taking his medication. He was unwell and the claimant tried to get him to go to the hospital, but Mr Al Mahmood refused.

By 20 October 2020, Mr Al Mahmood was becoming increasingly agitated and kept asking when the will writer was coming back. He asked the claimant to bring the bags to him again, but this time he explained how the claimant could access all his bank accounts and gave him the relevant security information. He also handed over his bank cards and cheque books and access to his online share-dealing account. He told the claimant that everything was his now and that he could either have the money now or wait until he had died. Mr Al Mahmood went on to give the claimant documents for his rental properties and handed over the Land Registry documents for his home and told him where the spare key was. Throughout the conversation, he repeatedly told the claimant that everything was for him and said that it did not matter if the will writer came back or not.

On 22 October, Mr Al Mahmood was very sick, and still refusing to attend the hospital, saying that his time was short and that he could die at any time. The will writer had been unable to find witnesses for the will and asked the claimant to help, which he agreed to do. Subsequently, Mr Al Mahmood asked the will writer to attend and “get the will done now”. The same morning, he messaged the will writer saying,

“Jonathan, I am al-Mahmood. 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.”

A further text was sent to a friend of Mr Al Mahmood’s wife, saying,

“Sayam, pray for me. Masud is my son. He is the absolute owner of all my assets. This my final word.”

Mr Al Mahmood sadly died in the early hours of 23 October 2020.

Findings of the Court

The Court found that the gift made by Mr Al Mahmood to the claimant was indeed a valid deathbed gift as all of the requirements set out above were satisfied. The only items that fell short were the chattels within his properties, because Mr Al Mahmood had not attempted to deliver them to the claimant.

Previous case law has confirmed that unregistered land can be the subject of a deathbed gift, however the courts have not clarified the position in relation to registered land. Importantly, the judge in this case held in principle that there is “no conceptual reason” to distinguish between registered and unregistered land for the purposes of a deathbed gift, and that therefore “there can be a donatio mortis causa of registered land, as of unregistered.”

It was also considered whether the handing over of the land certificate was sufficient. The judge held that the intention of Al Mahmood when handing over the certificate was important, as had been discussed in previous case law, and he found that the deceased had meant to give his house to the claimant.

In Conclusion

Deathbed gifts are made when a person is arguably at their most vulnerable, and may be open to abuse or influence. These gifts are often challenged and each case will be judged on its own individual facts and circumstances. It is therefore essential to seek specialist legal advice if you have questions about deathbed gifts or are involved in a challenge.