Gift "in Contemplation of Death": Permission to Appeal

The most common method of leaving loved ones a gift after your death is by stating this intention in a valid Will. However, in a recent case heard in the High Court in May 2024, it was decided that a gift made in contemplation of death was valid, regardless of what was previously stated in the deceased’s will.

Mr Al-Hasib Mahmood, an 82 year old man, lived in his London property with his wife. In 2015, Mr Mahmood executed a will, leaving his entire estate to relatives in America.

However, after his will was executed, Mr Rahman (Mr Mahmood’s distant cousin) travelled from Bangladesh to London. Their relationship developed over the years, and Mr Rahman increasingly cared for Mr Mahmood and his wife as their health deteriorated.

Eventually, in 2020, Mr Rahman was invited to move into the Mahmoods’ home, where he provided round the clock assistance. Unfortunately, shortly afterwards Mrs Mahmood was taken into hospital where she passed away, leaving her estate to her husband in her will.

Mr Mahmood’s own health continued to decline, and he became heavily reliant on the assistance provided by Mr Rahman. Two weeks after his wife’s death, Mr Mahmood also passed away.

Mr Rahman then pursued a claim alleging that on 15 October and 23 October 2020, Mr Mahmood had given him all of his assets in the UK, including all of his personal belongings, registered land and bank accounts. The claim relied on the Roman law doctrine of donatio mortis causa, or gifts in contemplation of death”.

Donatio mortis causa is a gift made by a living person in contemplation of their death, after which the subject matter of the gift passes directly to the individual intended to receive the benefit, rather than going to the personal representatives of the estate.

In order to successfully rely on this doctrine, the following conditions must be satisfied:

1. The gift must be made in contemplation, although not necessarily in expectation, of impending death.
2. The gift must be contingent on the person making it dying.
3. There must be delivery of the subject matter of the gift, or title to it, which amounts to a parting with dominion, possession or control.

In this case, several key factors were considered, such as Mr Mahmood providing Mr Rahman with all the passwords and details required to access his bank accounts and having handed over the land certificate for the property in London and the other properties he owned.

Further evidence of Mr Mahmood’s intention was shown in a text he sent to a will draftsman which read: ‘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 revoke all my previous will done by me and my wife.’

His Honour Judge Paul Matthews was satisfied that Mr Mahmood believed he was dying, and agitated by believing he could not execute a new will due to the pandemic, took steps to ensure that his intentions were effective. Therefore, he resorted to a gift to take effect on death.

The Judge added that “the whole point about the doctrine of donatio mortis causa is to provide a legal solution to a human need, when other legal institutions do not”.

Mr Rahman’s claim therefore succeeded, with the exception of some furniture and other contents of the properties.

However, last week, His Honour Judge Paul Matthews, in the High Court, agreed to grant Mr Mahmood’s relatives permission to appeal on five grounds.

One of the grounds was that ‘the issues raised in this case regarding bank accounts and registered land are novel, and the decision in this case will set a precedent of importance’.

The judge commented: ‘I accept that the decisions in principle relating to the application of the doctrine of donatio mortis causa to registered land and to bank accounts using online passwords and bank cards are novel. Even if there were no real prospect of success on them, their novelty and their increasing importance in modern society provide a compelling reason for appeals on these points to be heard.’

However, the judge’s permission to appeal was conditional on a payment on account being made by Mr Mahmood’s family, to Mr Rahman, as he claimed he was unable to fund further legal costs.

Appealing any court decision is a complex and difficult process, so it is not a decision that will have been taken lightly.

It will be interesting to see how this case progresses in the Court of Appeal, as it could set a new precedent in the area of contentious wills and probate.

If you or someone you know is currently looking to dispute a will or an estate, our expert commercial team have experience acting for both Claimants and Defendants in these types of cases.

For a free no obligation discussion, please contact us on 0121 355 0011 to see how we may be able to help you.