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Wills and Probate specialist Deathbed gifts: what are they?
A deathbed gift is one made by someone in anticipation of their imminent death. The principle of deathbed gifts (legally known as ‘donatio mortis causa’) is long established in law. For such a gift to be valid, specific conditions must be met.
Deathbed gifts: 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 soon from an identifiable cause, such as a serious illness or risky surgery. Merely nearing the end of their natural lifespan 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 that time. Additionally, if death by the specified 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 through physical possession or via means of access. However, it’s important to note that in many cases, traditional physical evidence of ownership is becoming outdated and replaced by digital records, meaning there may be nothing physical to hand over.
Mental capacity
Understandably, it is a requirement that the person making the gift has the necessary mental capacity to do so. However, the standard of capacity required depends on the nature of the gift. The more significant the gift, the higher the standard, with the test increasingly aligning with the usual test for capacity to make a Will.
Rahman v Hassan
The recent case of Rahman v Hassan and others (2024) highlights the expanding scope of evidence needed to confirm a valid deathbed gift. The case is presently under appeal, and I will provide further updates once the outcome of the appeal is known.
The Claimant was Mr. Masudur Rahman (R), a relative of the late Mr. Al Mahmood (M). R grew increasingly close to M and his wife after relocating from Bangladesh to England in 2011. In 2015, following the death of his wife and with no children, M made a Will appointing 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 as his sole executor and beneficiary. In fact, he even asked his solicitor to visit him at home, who then arranged to return with the draft Will after speaking to M’s doctor about his mental capacity. However, M passed away before he could sign the Will. Despite this, his solicitor gave evidence to the court that M provided very clear instructions.
After his solicitor left, M showed R relevant documents related to his assets and gave him access to his online accounts. He told R that he would soon die and would be leaving all these assets to him.
Furthermore, the day before his death, M sent text messages to his solicitor and a relative reaffirming his intentions, confirming that he was leaving all his assets to R and appointing him as the sole executor.
R claimed that M’s actions constituted 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 relinquish possession. He observed that providing access details (e.g., passwords) effectively removed M’s control over the accounts, meeting the essential requirement, even though continued access by M was not impossible.
Registered land
Previous case law confirmed that unregistered land can be the subject of a deathbed gift. It is also quite clear that handing over a bundle of title deeds indicates an intention to transfer ownership. However, although the position was not entirely clear for registered land, the Judge in this case held that, in principle, it can also be the subject 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.
Deathbed gifts: Modern technology
The idea of ‘parting with dominion’ becomes more complex as more assets are managed digitally. For instance, giving access to online accounts or an unlocked smartphone may seem to meet the requirement, but it also raises concerns about potential fraud and the abuse of the elderly or vulnerable. Therefore, the court will likely need supporting evidence to determine whether the person genuinely intended to make the gift.