What is a deathbed gift? Understanding donatio mortis causa in English law

Emily Welch, Solicitor in our London Private Wealth Disputes team, writes on deathbed gifts and recent case law in this area.

What is a deathbed gift?

Usually, any gifts which are to take effect after an individual’s death are set out in their will. However, there can be scenarios where a person (the donor) makes a gift during their lifetime, but that gift is made in contemplation of their death and is only to take effect following their passing. The gift remains conditional until the donor dies. This type of gift is called a donatio mortis causa, or more commonly known as a deathbed gift.

For a deathbed gift to be valid, the following conditions that must be satisfied:

• the donor must believe they are going to die;
• the gift must be explicitly conditional upon the donor dying (if they recover, the gift is no longer valid); and
• the donor should deliver or part with the gift (this could be handing over the keys, or the actual item).

The practical implications of deathbed gifts are that they do not form part of the donor’s estate which would be distributed in accordance with any will that they may have prepared or the intestacy rules. From the perspective of any beneficiaries of the donor’s estate, they may find their share of inheritance from the estate reduced if a deathbed gift is found to be valid.

The case of Rahman v Hassan [2024] EWHC 1290 (Ch) considered the requirements for a deathbed gift to be valid and what actions might amount to a valid deathbed gift.

Rahman v Hassan: challenging a deathbed gift

Mr Al Mahmood made a will in 2015 which left his estate to his wife’s three nieces and her brother, who were the defendants in the claim. Mr Rahman, the claimant and purported distant relative/family friend of Mr Al Mahmood, claimed that Mr Al Mahmood had made deathbed gifts to him which would not form part of his estate and would not be distributed in accordance with the 2015 will.

On 15 October 2020, Mr Al Mahmood instructed a will writer to prepare a new will for him at a time when he was ill and did not think he had much longer to live. Under this new will, Mr Al Mahmood instructed the will writer to draft the will with Mr Rahman, the claimant, as the sole executor and beneficiary. This will was not formally signed due to issues locating witnesses in the midst of the Covid-19 pandemic, so the 2020 was not valid, meaning that the 2015 will remained the last valid will.

A matter of days before his death, on 20 October 2020, Mr Al Mahmood provided Mr Rahman with the HM Land Registry documentation for his home and the leases for other properties he owned in London. Mr Rahman already had a set of keys for Mr Al Mahmood’s home as he had been assisting Mr Al Mahmood and his late wife. Login details and passwords for online banking and other online accounts were also provided.

On the day of his death, Mr Al Mahmood sent text messages to the will writer and a friend stating that all of his assets were to pass to Mr Rahman.

Validity of the deathbed gifts

The court held that the deathbed gifts were valid. The judge ruled that Mr Rahman’s claim was successful because all elements of the test for a valid deathbed gift were present. On 15 October 2020, Mr Al Mahmood was simply setting out his instructions for his new will, but on 20 October 2020 he made a valid deathbed gift of his bank account and property. These gifts were made in contemplation of death, and he had made the gifts conditional on his death.

This meant that although the unsigned 2020 will was not valid, Mr Rahman still benefited from the gifts through the deathbed gift, and these assets did not form part of Mr Al Mahmood’s estate for the purpose of distribution under his 2015 will.

Further consideration of deathbed gifts and the case

The nature of deathbed gifts means that they are often challenged because they are rarely written, and are made at a time when an individual is vulnerable and potentially open to abuse. This means there must be a high level of scrutiny in such cases to safeguard against dishonest claims.

Following judgement in this matter, the court has since granted the defendants permission to appeal on five grounds. The key challenges are in relation to delivery of the gifts and whether handing over the Land Registry documentation and login details can be sufficient to satisfy this condition. The outcome of any potential appeal is awaited, and it will be interesting to see the outcome of this, if it is pursued. If you are the recipient of a deathbed gift being challenged, or wish to challenge one yourself, then it is essential that you take early legal advice. Executors particularly should consider if a deceased person has made deathbed gifts which need to be honoured, and the implications for the estate and beneficiaries.