Deathbed Gifts – Last Wishes or Legal Limbo?

13 August, 2024 4 minutes reading time

The concept of deathbed gifts, known legally as donatio mortis causa (DMC), is a centuries-old tradition in English law. It allows individuals to bequeath assets outside the formal Will-making process. It provides a way to express final wishes directly to loved ones in anticipation of death. However, while the concept seems simple, DMCs often entail complex legal considerations.  A clear understanding of the strict requirements for a valid DMC is crucial to prevent potential disputes among family members and beneficiaries. This need for clarity was recently underscored in the High Court case of Rahman v Hassan & Ors [2024], which emphasised the significance of even informal communication, such as text messages, in establishing the individual’s intentions and the potential for disputes if these requirements are not met.

What Exactly is a Deathbed Gift (DMC)?

A DMC is a unique form of gift made when someone is anticipating their imminent death, typically due to illness or old age. Unlike testamentary gifts made through a Will, a DMC takes effect immediately, even before the individual’s death. However, it’s important to note that this gift is conditional: if the individual unexpectedly recovers, they retain the right to revoke it. The gift only becomes absolute and irrevocable when the individual dies from the anticipated cause.

Legal Requirements: A Delicate Balancing Act

To ensure a DMC is legally sound and to avoid potential disputes, specific stringent requirements must be met:

1. Contemplation of Death: The individual must genuinely believe their death is imminent. This does not necessarily mean death is expected within hours or days; it could be weeks or even months. The key is that death is a foreseeable reality, not a mere possibility.

2. Conditional Nature: The gift must be explicitly stated as conditional, becoming absolute only if the individual dies. This distinguishes it from an outright, irrevocable gift.

3. Delivery: The individual must deliver the gift to the recipient or take decisive steps to transfer ownership. This could involve physically handing over possessions, providing keys to a property, or transferring legal documents such as share certificates or bank account details.

4. Acceptance: The recipient must accept the gift expressly or through their conduct. Silence or inaction may not suffice as acceptance.

Lessons from Recent Case Law

Rahman v Hassan & Ors [2024] EWHC 1290 (Ch) revolves around a dispute over the £1.4m estate of Al-Hasib Al Mahmood, who died during the COVID-19 pandemic in 2020. Mr Mahmood had a 2015 Will leaving his estate to his wife’s relatives in the US. However, in the days leading up to his death, he sent text messages to a friend and a Will writer, stating that his friend, Masudur Rahman, was to be the “absolute owner” of all his assets.

The court ultimately ruled in Mr Rahman’s favour, recognising the text messages as valid deathbed gifts (DMCs). Judge Paul Matthews concluded that Mr Al Mahmood genuinely believed he was dying and had intended to create a new Will. Pandemic-related delays led him to use text messages to express his clear intention to gift his assets to Mr Rahman.

This landmark case demonstrates that DMCs can be valid even through informal communication like text messages. It highlights the importance of considering context, the donor’s intentions, and the evolving nature of communication in assessing deathbed gift validity.

Our Advice

Deathbed gifts invariably occur when a person is at their most vulnerable. And while DMCs are rare, they have become more common since the pandemic. Indeed, DMCs have provided flexibility in expressing an individual’s final wishes. However, the Rahman v Hassan case is a stark reminder of their inherent risks and the potential for disputes if not handled carefully.

We strongly recommend comprehensive estate planning during your lifetime. This will ensure your legacy is protected and your intentions are carried out accurately. If you have questions about deathbed gifts or are involved in a challenge, please don’t hesitate to get in touch. Our specialist lawyers have many years of experience in advising clients about planning their estate; We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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