Deathbed gifts

What is a deathbed gift?

A donatio mortis causa (a DMC, or more commonly known as a deathbed gift) is a gift made by a person (the donor) in anticipation of impending death (i.e. death in the very near future). Deathbed gifts don't form part of the donor’s estate for distribution under any Will. Ultimately, the Will could end up being ignored, or the beneficiaries’ shares of the estate under it being reduced.  

There are four conditions for a gift to qualify as a deathbed gift:

1. At the time of making the gift, the donor must have genuinely believed they were going to die. The beneficiary of the gift must prove this.
2. The gift must be made on the condition that the donor dies (i.e. if the donor recovers, the gift is revoked).
3. The donor must deliver or part with the gift. This could be by parting with something which controls the gift, e.g. a key.
4. The gift must be capable of being given away.

The recent case of Rahman v Hassan [2024]

The deceased made a Will in 2015 leaving his UK estate to his wife’s three nieces and her brother (the defendant). The deceased’s friend (the claimant) brought a claim against the estate, alleging that the deceased made deathbed gifts to him comprising all of his UK assets. 

The key witness was a Will writer who the deceased instructed on 15 October 2020, at a time when he was extremely ill and believed he did not have long to live (fulfilling condition 1). He instructed the Will writer to draft a new Will under which the claimant was to be the sole executor and beneficiary. The gifts were made on the condition that he died (covering condition 2). 

Five days later, the deceased provided the claimant with Land Registry documents for all of the UK property he owned (the claimant already had the keys). He also provided the claimant with logins and passwords to various online accounts e.g. online banking (satisfying condition 3). 

The Will writer was scheduled to return to the deceased on 22 October 2020 to execute the new Will. However, this meeting didn't take place as the Will writer was unable to secure witnesses for the Will’s execution. Unfortunately, it appears the Will writer was unaware that witnessing of Wills via videoconference was allowed during this time due to Covid-19.

The deceased wanted to ensure his testamentary wishes were clear, and so on the same day as the cancelled meeting, a text message was sent from the deceased’s phone to the Will writer stating “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.”  

From the same phone, another text message was sent to a friend of the deceased saying “…Masud is my son. He is the absolute owner of all my assets. This my final word.” The deceased died later that day.

The days between the deceased’s instruction and his death were therefore critical to the claim. There was some concern as to whether the deceased was the author of the texts, however the High Court were satisfied that he was. The High Court also confirmed that the gifts were capable of being given away (including, in principle, registered, and unregistered land) – satisfying condition 4.

The High Court stated that the point of the doctrine of DMC is to provide a legal solution to a human need. However, the High Court made a point of noting that the case did not succeed because it was a deserving one, but because it met all legal requirements (as set out above) i.e. it is likely not enough for the circumstances of the case to warrant such a gift being valid; the legal requirements must be met. 

Overall, the High Court was satisfied that the deathbed gifts were valid (except for some trivial points). Therefore, although the new Will wasn’t signed and therefore wasn’t valid, the Deceased’s text messages helped to ensure that his friend benefitted from his estate and that the gifts did not form part of his estate for distribution under his 2015 Will.

Of course, the nature of deathbed gifts leaves them open to abuse, and so they are often challenged, particularly as they are most often made at a time when the donor is vulnerable.