Expert Witness Journal Dec 24 - Journal - Page 17
This was another case where there was some minor
but significant disagreement between the experienced
experts appointed by both parties. Again, notwithstanding one expert saying the testator may have had
a condition that undermined his capacity, taking into
account all of the available evidence, the court seemed
to have little hesitancy in upholding the Will.
The “Deathbed Will” Case
In Rahman v Hassan the Claimant sought declarations that the deceased (Mr Al Mahmood) had made
various valid transfers of property and assets to the
Claimant (Mr Rahman) in contemplation of his death.
Such gifts made in contemplation of death ('donatio
mortis causa') take effect without reference to a Will,
provided they can satisfy certain requirements:-
“I wish I could have all that he has got” indeed……
1. The gift must be made in contemplation of impending death, and be subject to the condition that
the person making the gift (the 'donor') then dies;
And then in August the worlds of horse racing and
probate disputes melded together in the form of a
bitter feud between four siblings over the fortune of
self-made Yorkshire business man, and racehorse
owner, Reg Bond (Bond v Webster).
2. Such a gift is revocable by the donor;
3. The donor has to deliver to the person receiving
the gift (the 'donee') the item(s) in question, or some
means of accessing or controlling the asset.
By the time of his passing in March 2021 at the age of
77, Reg had, seemingly at least, left the bulk of his
estate to two of his children, Charlie and Greg, by a
Will of November 2019. That was in stark contrast to
various previous Wills which treated all of Reg’s 4
children equally (in broad terms).
4. Property which might be the subject of a donatio
mortis causa includes chattels and interests in land.
5. The level of capacity required to make a valid
donatio mortis causa is the same as for any other
lifetime gift.
This case culminated in a 16-day trial spanning 3
months. As with Leonard, this was a case where the
Will writer was insistent that the testator did have
capacity. But the judgment observes fairly early on;
They are sometimes referred to, especially by the
wider public, as 'deathbed wills'. Of course, that is a
misnomer; the entire point of the category of case is
that the gifts pass outside of the terms of a person’s
Will (or the laws of intestacy).
“I am afraid that I cannot say, in general terms, that I will just
accept Ms Martin's evidence [because] she is a professional
person and was doing her best to assist the court. There are too
many unusual features about the will-making process that
means it is not so simple as to say that I will accept her evidence
in full……it needs to be tested against the reliable evidence.”
The facts in Rahman v Hassan
The Claimant was a friend of Mr Al Mahmood, and he
(and his wife) had come to rely on the Claimant for
support in their old age; the Claimant even moved
into their home to look after them. Mr Al Mahmood’s
wife died on 6 October 2020. Shortly after this, the
Claimant's wife and child also moved into the home
with them.
Having then assessed all of the evidence, the judgment
records;
“I do not feel able to place the sort of weight on Ms Martin's
assessment of Reg's capacity in relation to the 2019 Will that
the Claimants invite me to do. It alone does not satisfy me on
the balance of probabilities that Reg had capacity. I do not
think that she was acting wholly independently of the side of
the family that were substantially benefitting from the 2019
Will and she was prepared to involve them in the process while
being told to keep it all from the other side of the family. She
was also prepared to receive instructions from people other
than Reg as to what was to go into the will and Reg's voice
and input is almost undetectable.
By this time Mr Al Mahmood was unwell and did not
expect to live long. On 15 October 2020, he gave instructions to a Will writer to prepare a new Will, under
which the Claimant was to be the sole beneficiary.
Mr Al Mahmood also showed and explained to the
Claimant various documents relating to his bank accounts, the Land Registry certificate for his home and
the leases for two flats, saying that he would die soon
and would be giving all those assets to the Claimant.
In that situation, Ms Martin should have been far more cautious about accepting that Reg had capacity and should have
complied with the Golden Rule and got an opinion at the time
of the execution of the Disputed Documents, which might have
avoided this unfortunate litigation.”
On 20 October 2020, after having been told that the
Will writer was not due to bring the new Will for execution until 22 October, Mr Al Mahmood gave all
those documents to the Claimant, together with all the
logins and passwords needed for accessing online accounts. He told him that ‘everything was his’ and that
he could take the money straight away or wait until
after he was dead.
Instead the court found itself “not persuaded that Reg
was playing any real part in the process” and that instead
he was “just agreeing to whatever was being put before him.”
The court also added that “The fact that he was so disengaged, and actually unable to give instructions to Ms Martin in relation to his will, means that there should have been
huge question marks around whether he was capable of understanding what he was doing.”
Mr Al Mahmood then passed away on 23 October
2020.
Mr Al Mahmood had prepared a previous Will in
2015 and the Defendants in this case were the beneficiaries of that Will. If the 'deathbed gifts' to the
Claimant were found to be valid they would not form
part of Mr Al Mahmood’s estate for distribution under
the 2015 Will.
In those circumstances, and given the various other
details contained in the judgment it is unsurprising
that the court refused to propound the 2019 Will.
EXPERT WITNESS JOURNAL
15
DECEMBER 2024
