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What is a deathbed gift?
A deathbed gift is one made by a person in anticipation of their impending death. The principle of deathbed gifts (in legal terms known as ‘donatio mortis causa’) is long enshrined in law. For a deathbed gift to be valid, certain conditions must be satisfied.
Impending death
The person making the gift must contemplate their impending death. Although their death does not need to be inevitable, they must have a good reason to anticipate death shortly from an identifiable cause, e.g. a severe illness or dangerous surgery. Simply approaching the end of their natural life span is unlikely to be sufficient for a valid deathbed gift.
Conditional and revocable
The gift must depend on the person’s death and be revocable until then. In addition, if death due to the identified cause is not inevitable, the gift lapses if death does not occur due to that cause.
Parting with dominion (control)
The person making the gift must relinquish control over the gift’s subject matter, whether that’s physical control or through means of access. However, it’s important to remember that in many instances, traditional physical evidence of ownership is becoming obsolete and replaced by digital records, i.e. there may be nothing physical to hand over.
Mental capacity
Understandably, it’s a requirement that the person making the gift has the necessary mental capacity to do so. However, the standard required depends on the nature of the gift. The more significant the gift, the higher the standard, with the test moving more towards the usual test for capacity to make a Will.
Rahman v Hassan
The recent case of Rahman v Hassan and others (2024) highlights the broadening of the scope of evidence required to substantiate a valid deathbed gift, although the case is currently subject to an appeal, and I shall report further once the appeal outcome is known.
The Claimant was Mr Masudur Rahman (R), a relative of the late Mr Al Mahmood (M). R became increasingly close to M and his wife after moving from Bangladesh to England in 2011. In 2015, following the death of his wife and having no children, M made a Will naming relatives of his wife as his beneficiaries.
Subsequently, M became very ill and, fearing imminent death, expressed a wish to make a new Will naming R his sole executor and beneficiary. Indeed, he went as far as asking his solicitor to visit him at home, who then arranged to return with the draft Will once he had spoken to M’s doctor regarding his mental capacity. However, M passed away before he could execute the Will. Despite that, his solicitor gave evidence to the court that M gave very clear instructions.
After his solicitor left, M showed R relevant documents relating to his assets and provided him with access to his online accounts. He told R that he would soon die and would be giving all of these assets to him.
Further, the day before his death, M sent text messages to his solicitor and a relative reiterating his intentions, confirming that he was leaving all his assets to R and appointing him sole executor.
R claimed that M’s actions amounted to deathbed gifts to him of several assets, including various bank accounts, three registered properties, and shares held in a Hargreaves Lansdown share dealing account.
Bank accounts and shares
Regarding the electronic assets, the Judge focused on M’s intention to part with possession. He noted that providing access details (e.g. passwords) essentially removed M’s control over the accounts, fulfilling the necessary requirement, even though continued access by M was not impossible.
Registered land
Previous case law confirmed that unregistered land can be the object of a deathbed gift. And it’s pretty clear that handing over a bundle of title deeds suggests an intention to part with ownership. However, although the position was not at all clear for registered land, the Judge in this case held that, in principle, that can also be the object of a valid deathbed gift. The Judge emphasised that handing over a Land Certificate or even official copies of the register can demonstrate an intention to gift.
Modern technology
The concept of ‘parting with dominion’ becomes more complicated as increasingly more assets are controlled digitally. For example, handing over login details to online accounts or even an unlocked mobile phone theoretically satisfies the requirement. But it also raises concerns about potential fraud and abuse of the elderly or vulnerable. So, the court will likely require corroborative evidence of whether the person truly intended to make the gift.
