First things first, what are the requirements for a deathbed gift, or donatio mortis causa in legal terms, to be considered a valid gift? Broadly, there are four requirements:
- The person making the gift, known as the ‘donor’, must do so in contemplation of their impending death.
- The gift must be contingent on the donor dying. If the donor makes the gift and then recovers, the gift is revoked.
- The donor must part with their gift and deliver it in some way to the intended recipient, known as the ‘donee’ – but this does not mean the donor actually parting with ownership.
- It must be possible for the gift to be given away in the manner in which the donor has done so.
There are therefore considerable hurdles to be overcome by a claimant in these types of claims. The hurdles were successfully overcome by the claimant in the recent case of Rahman v Hassan, which was especially interesting because it involved the gift of login details for online bank and other financial accounts.
The case was heard by HHJ Paul Matthews sitting as a judge of the High Court. In this article, we explore the facts of this case and reveal the court’s decision.
The facts
The pertinent facts of the case as alleged by the claimant are as follows:
- The claimant, Mr Masudur Rahman, was a relative of the deceased Mr Al Mahmood. The deceased and his wife had made wills in 2015. The claimant made a claim for declarations that certain transactions alleged to have taken place between the claimant and the deceased shortly before the deceased died amounted to deathbed gifts. The claim was opposed.
- The deceased’s wife had died in early October 2020 and left her estate to the deceased. At that time the deceased, who was also in ill health, gave instructions for a new will to be prepared, leaving his estate to the claimant. The deceased told the claimant and the claimant’s wife that he did not think he would live very long. The deceased’s estate included the family home, two rental properties and cash and investments held in various bank and financial accounts. An appointment with a will writer was made and after an initial consultation the will writer said he would return with a will for execution once he had spoken to the deceased’s GP.
- Following the meeting with the will writer, the deceased showed the claimant various documents relating to his properties and bank accounts. When the claimant asked the deceased why he was being shown the documents, the deceased told the claimant that he was getting old and would die soon, and he would be giving all those assets to the claimant.
- On 19 October 2020 the deceased stopped taking his medication and refused to go to hospital. The next day, 20 October 2020, the deceased was agitated, asking when the will writer was coming with the will for execution. The claimant reminded the deceased that he was not due until 22 October 2020. HHJ Paul Matthews found that, by this stage, the deceased was actively contemplating his own death.
- The deceased thought that he didn’t have long to live and in the course of the day became agitated, asking the claimant to bring all the bags from his office into the bedroom where he was. He opened the bags and took out the documents, and this time the deceased explained all the login details for the online accounts. He handed bank cards, cheque books and login devices, pin readers and other security items to the claimant. The deceased told the claimant that the claimant would now have access to all his accounts and that everything was his, and he could take the money straight away or wait until after he was dead.
- Later that day on 20 October 2022, the deceased sent two text messages. The first, to the will writer, which read: “I agreed that [the claimant] will be the absolute own[er] 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 [sic]. It’s a difficult time for me. Please help [the claimant].” The second was to a relative: “[the claimant] is my son. He is the absolute owner of all my assets. This is my final word”. The deceased died the following day.
What did the court decide?
HHJ Paul Matthews found that the gifts on 20 October 2020 satisfied the requirements for a death bed gift. HHJ Paul Matthews found that the deceased contemplated his impending death, and made the gifts on condition that he died, which then happened within three days. The deceased did nothing to revoke the gifts before he died. HHJ Paul Matthews found that there was evidence that the deceased had capacity to act as he did, and no evidence to suggest a lack of such capacity.
The deceased had implemented the gifts by:
- Handing to the claimant the land certificate for the house and the leases for the rented flats, when they already had the house keys.
- Informing the claimant of the login details and passwords for the online bank and other accounts, together with handing to the claimant, in those cases where he had them, the security devices and bank cards associated with the accounts.
The judge helpfully explained that in respect of bank and other financial accounts, the login and password identify the user as the account holder and that they are the ‘indicia of title’ in the computer age. The deceased wanted the claimant to have the contents of the accounts so he had given possession of the papers containing details of the logins and passwords to the claimant. The deceased was an elderly, sick man who had many accounts with financial institutions. By handing over the papers to the claimant, the deceased had put it in his power to deal with the accounts.
The judge went further and asked the question, what more could the deceased have done in the circumstances in which he found himself? He was ill, believed he was dying, and had given instructions to a professional will writer for a new will. Unfortunately, this was during the covid-19 pandemic. The deceased became understandably agitated because he had not received the new will and he wanted to ensure that his intentions were effective so he did what he could physically to make a gift to take effect on death.
HHJ Paul Matthews concluded by stating that the whole point about deathbed gifts is to provide a legal solution to a human need when other legal mechanisms do not. If the deceased had wanted to revoke the gifts he could have done so. He did not.
Summary
This case provides some clarity on what constitutes sufficient delivery of a deathbed gift in a modern technological age, particularly when it comes to passing on confidential and sensitive information such as banking logins and passwords. However, the decision has been appealed, and we eagerly await the decision of the Court of Appeal.
How can we help?
A claim for a valid deathbed gift is often likely to be challenged so it is important to seek legal advice at the earliest possible opportunity. Conversely, if a claim has been made for a deathbed gift then the executors and beneficiaries should themselves seek legal advice as soon as possible.
For further information, please contact the disputed wills team.
