Donationes mortis causa – what is a ‘deathbed gift’?

During the Covid-19 pandemic, the validation of legal documents became a significant challenge due to the need for witnesses to be physically present. Although temporary legislation was passed on 31 January 2020 to enable the signing of Wills to be witnessed using video conferencing technology, this was not always easy or possible, particularly for elderly or vulnerable people who were unfamiliar with such software.

This gave rise to a problem: with many elderly people fearful for their lives and unable to make a valid Will, how could they ensure their wishes were respected on their death?

Donationes mortis causa – a case study

It is this issue that led to a Will dispute between Al-Hasib Al Mahmood’s family and the eventual recipient of the vast majority of Mr Al Mahmood’s £2.8 million estate, Masudur Rahman.

With the country in lockdown, Mr Al Mahmood was apparently unaware of the temporary legislation allowing Wills to be witnessed via video conferencing. Wishing to change the beneficiary of his estate to Mr Rahman, a friend whom he and his late wife had met in 2011 and upon whom they had increasingly relied for assistance as they aged, Mr Al Mahmood sent a text to a Will draftsman reading: “I agreed that 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.”

Mr Rahman also alleged that, prior to his death, Mr Al Mahmood had given him all his UK assets, including his possessions, property and bank accounts – an example of the legal principle donationes mortis causa, or gifts in contemplation of death.

When are ‘deathbed gifts’ valid?

As the only living witnesses to the gifts were Mr Rahman himself and his wife, suspicions were raised among the deceased’s family as to the validity of Mr Al Mahmood’s final wishes.

However, the Will draftsman whom Mr Al Mahmood had contacted, Jonathan Amponsah, testified that he had been instructed to draft a new Will and that he had been due to witness it on 22 October 2020. However, delays to this process meant that the deceased died before his new Will could be witnessed.

The doctrine of donatio mortis causa, more commonly known as a deathbed gift, “exists to address a human need when other legal mechanisms fail,” commented the judge who ruled primarily in Mr Rahman’s favour. Lord Justice Jackson, in the 2015 case of King v The Chiltern Dog Rescue and Redwings Horse Sanctuary, summarised three criteria for a legally valid deathbed gift:

• The person making the gift must contemplate his or her impending death

This means that the person making the gift must have good reason to believe that they will die in the near future – for example, because they are seriously or terminally ill.

• The gift must be clearly conditional upon that person’s death actually occurring

The person making the gift should be able to take it back at any point in their lifetime. Depending on the wording of the deathbed gift, it may not be valid if the person dies of a cause other than the one identified in the first criterion.

• The person making the gift should deliver ‘dominion’ over the subject matter of the gift – i.e., the person making the gift must either transfer it into the beneficiary’s physical possession or deliver them the means of accessing it (e.g., bank account codes, keys or documentation).

Always make or update your Will where possible

Clearly, Mr Al Mahmood was operating under unprecedented lockdown restrictions and appeared to be unaware that his new Will could be witnessed via video conferencing technology. It is in these kinds of circumstances that the principle of donationes mortis causa comes into play.

However, it is not a concept that can be relied upon, with significant restrictions on the validity of such gifts. Therefore, our solicitors would always recommend having your Will drawn up and regularly reviewed by a legal professional, not only ensuring that your wishes will be respected but also avoiding a difficult and potentially expensive contentious probate case discussed in this article.

Our Wills & Probate team can help you draw up a Will that accurately reflects your wishes and minimises the opportunity for conflict after you are gone. Contact us on 0330 221 8855 or email enquiries@attwaters.co.uk to set up an appointment.