Expert Witness Journal Dec 24 - Journal - Page 37
Can You Make a “Deathbed Will”?
In Rahman v Hassan the Claimant sought declarations that an elderly gentlemen (Mr Al
Mahmood) had made various transfers of assets to the Claimant “on his deathbed” and in
contemplation of his death.
Gifts made in contemplation of death are referred to
as donatio mortis causa (“DMC”). If they can be established, such gifts take effect without reference to a Will
– they effectively take effect outside of the Estate of the
deceased. Outside of legal circles these types of gifts
are sometimes referred to as “Deathbed Wills”.
(2) The gifts must have been intended to be revocable
by the deceased at any time until his death;
(3) The deceased had to be shown to have “delivered”
to the person receiving the gift the items in question,
or some means of accessing or controlling them; and
(4) That the deceased had the required level of
capacity required to make a valid DMC.
The Facts in Rahman v Hassan
Mr Rahman was originally from Bangladesh. He
claimed to be a relative of Mr Al Mahmood, who also
came from Bangladesh originally. The claimant asserted that he met the deceased and his wife in 2011,
when he moved to London.
Court Decision
The court did not appear to have too much difficulty
in establishing the limbs 1, 2 and 4 above. The
Claimant’s evidence on what was said to him by the
deceased was, broadly, accepted by the court, and
there was no evidence before the court that the
deceased lacked capacity to make the gifts. That being
the case, the court was satisfied that the deceased had
made gifts to him in “contemplation of impending
death”.
Over the years, Mr Rahman said, he got to know the
deceased and his wife well. As they became older they
came to rely on him for assistance. This only increased
as they became unwell in the last years of their lives.
Mr Rahman claimed he spent increasing amounts of
time with them, visiting them several times a week and
often staying overnight. Eventually he moved in with
them at their house in Mitcham. After the death of the
deceased's wife, Mr Rahman’s own wife and child even
moved in to that house with the deceased.
Of crucial importance, the deceased was found to
have given to the Claimant “all the security devices, logins
and passwords that were needed for accessing his bank and
similar financial accounts, telling him that everything was
his”. He also gave to the Claimant “the land certificate for
the house and all the documents relating to the flats in Sutton,
telling him that they were for him.”
The deceased's wife died first, in October 2020. In her
Will she left her entire estate to her husband. Unfortunately he died a little over two weeks later, on 23
October 2020.
The third limb, however, called for a little more
thought it would seem. After the implementation of
the Land Registration Act 2002, Land Certificates had
to a large extent become obsolete; they are no longer
evidence of title – that is the Land Register itself – but
they are still generally indicative of title. The question
for the court to consider therefore was whether the
deceased had “parted with dominion” by giving the
Claimant the Land Certificates. After a lengthy consideration of the authorities (and various academic articles on the subject) the court was satisfied the Land
Certificates were adequate for this purpose;
Mr Rahman alleged that on 15 and again on 20
October 2020, the deceased did certain acts that
amounted to a DMC. Mr Rahman said that the deceased, by this DMC, gave him all of his assets in the
UK. These assets included personal belongings (or
“chattels” as they are often called) various bank accounts, and numerous properties. This included, Mr
Rahman said, assets that had belonged to the deceased’s wife and which he had inherited from her on
her death.
“…..at the end of the day, and as the Court of Appeal said in
the Woodard case, the question is really one of evidence: with
what intention was the document handed over? In my judgment, Mr Al Mahmood meant to give the house to the
claimant.”
The Defendants were relatives of the deceased’s late
wife. They claimed to be entitled to the deceased’s Estate under his last Will, made in 2015. According to
accounts filed during the proceedings, the UK Estate
was believed to be worth in the region of £2.8m. They
sought to dispute the existence and validity of the various gifts that Mr Rahman claimed by way of DMC.
A Further Twist
Two months after the judgment was handed down,
permission to appeal the decision was given by the
trial judge, HHJ Matthews.
How do you Establish a DMC?
In order to establish a DMC had arisen, Mr Rahman,
as with all people looking to assert a DMC, had to
show that certain requirements were met. Those requirements are:-
The Defendants sought permission to appeal on 8
separate grounds. There seems to have been little
trouble in dismissing the suggestion HHJ Matthews
was wrong to make numerous particular findings of
fact. But on matters of general substance and points of
law, the appeals were allowed.
(1) The gifts alleged had to have been made in
“contemplation of impending death” (and the person
making the gift then must die);
EXPERT WITNESS JOURNAL
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DECEMBER 2024
