COVID-19 deathbed gifts upheld

Deathbed gifts

A donatio mortis causa or deathbed gift is a gift by a person in contemplation of their impending death, made independently of any Will they may have in place.  The gift must be contingent on the donor dying. The donor must part with possession of the subject matter of the gift or deliver it in some way to the donee before their death. When the donor dies, the subject matter of the gift passes to the person that the deceased intended to benefit.

Facts of the case

In the case of Rahman v Hassan, 2024 EWHC 1290 Ch, the deceased had made a Will in 2015, leaving his UK estate to his wife’s nieces and brother (the defendant). The defendant, who was an executor, obtained a grant of probate.

The claimant brought a claim against the estate, arguing that the deceased had made deathbed gifts to him of his UK assets. The deceased had been living with the claimant, a long-standing friend whom he and his late wife had come to rely on for assistance as they grew older.

The deceased contacted a Will draftsman, Amponsah, as he was ill and knew he would not live long. Amponsah visited the deceased at his home and was instructed to draw up a new Will, under which the claimant was to be executor and beneficiary. Amponsah was due to return the following week, but meanwhile the deceased became concerned that he had not received the Will.

Amponsah telephoned the following week to say that he had been unable to find witnesses and asked the claimant to do so. Amponsah was unaware of the temporary change to the law during lockdown which allowed the witnessing of Wills by video-call. Later that morning, the deceased sent a text message to Amponsah, saying ‘Masudur Rahman will be the absolute own [sic] 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.’ The deceased sent another text message that night to another friend, saying ‘Masud is my son. He is the absolute owner of all my assets. This my final word.’ He died later that night. The deceased had given the claimant all the security devices, logins and passwords necessary for accessing his bank accounts and handed over the land certificate for his London home and the documents relating to his flats in Sutton.

The judgment

It was held that the deceased had made gifts in contemplation of his impending death, made conditionally on his death. As such, the deathbed gifts were upheld in relation to almost all of his UK assets. As the judge commented, ‘the whole point about the doctrine of donatio mortis causa is to provide a legal solution to a human need, when other legal institutions do not’.

The Birketts view

Making a gift by donatio mortis causa is a risky strategy and should only be considered as a last resort. It should not be regarded as an alternative option for someone looking to make provision at the end of their life. The best way to ensure your estate passes as you wish on your death is to make a valid Will. It may be that you are acting as executor of an estate, and someone is asserting that the deceased intended them to inherit a particular asset which was not included in the Will.  If you are an executor dealing with an estate in which the question of donatio mortis causa has arisen, you should seek advice to determine whether the requirements for a valid deathbed gift have been met.