The origin of deathbed gifts (or donatis mortis causa) dates back to Roman law; originally conceived as a practical solution to a specific situation – a soldier, on the eve of battle, making an immediate gift in case they did not survive. Despite strict formalities governing Wills, the doctrine of deathbed gifts has managed to survive and develop to avoid inequitable situations, but in doing so has created a legal anomaly with significant risk to charity income. 

The perplexing and fact-specific nature of deathbed gifts is perhaps made even more complex by advances in technology and, more specifically, how we hold assets.  Last year, the case of Rahman v Hassan¹ looked at how the doctrine applies to digital assets and garnered widespread media attention.  The case is an example of the radical impact a successful deathbed can have.  In that case, assets worth in excess of £2million passed to the recipient of the deathbed gift, rather than under the Will.   

Here we take a look at the requirements for a deathbed gift and how the Judge in Rahman v Hassan approached the problem of a deathbed gift of digital assets. 

What is a deathbed gift?

The requirements for making a Will are well known – it must be in writing, signed by the testator in the presence of two witnesses and signed by the witnesses in the testator's presence.

The doctrine of deathbed gift allows someone to transfer property on death without complying with any of those formalities.

There are four requirements for a deathbed gift:

1. At the time of making the gift, the donor must genuinely believe they are going to die.
2. The gift must be conditional on the donor dying (ie if the donor recovers, the gift is revoked).
3. The donor must part with 'dominion' over the asset in some way, either by handing over the item itself, by giving the donee something which controls access (eg the key to a locked box containing the gift), or something which evidences title (or 'indicia of title') (eg a share certificate).  
4. The gift must be capable of being given away, ie property which can be transferred by delivery or some suitable document can be given.

As with other lifetime gifts, the capacity required for a deathbed gift will vary taking account of the value of the gift in relation to the donor's estate.

Rahman v Hassan

Facts

Mr Al Mahmood had made a will in 2015 leaving his assets to relations of his wife who lived in the US.  

Mr Rahman was a distant cousin of Mr Al Mahmood.  Along with his wife, he became close friends with Mr Al Mahmood.  They became his caretakers: they did the shopping, helped with tasks such as cleaning, laundry, and gardening, and stayed overnight if Mr or Mrs Al Mahmood were unwell or had early appointments with which they needed help.  Mr Al Mahmood attended Mr Rahman's graduation ceremony and wrote a letter of recommendation to the Home Office when Mr Rahman needed assistance with his immigration status.  

After Mr Amponsah had gone, Mr Al Mahmood asked Mr Rahman to bring down some bags from his upstairs office.  Mr Al Mahmood opened the bags and explained that they contained documents relating to home and two leasehold flats which he owned in Sutton, a large number of bank accounts, and a share-dealing account with Hargreaves Lansdown.  He took Mr Rahman through all the documents and explained each one, saying that he was getting old and would die soon, and he would be giving all these assets to Mr Rahman.  Mr Rahman then replaced the bags in the office.  Only Mr Rahman could give evidence of this at trial.

Mr Al Mahmood began to refer frequently to his own death, eat and drink very little, and eventually stopped taking his medications.  

Shortly before he died, when Mr Rahman reminded him that the next appointment with the will draftsman was not for another two days, Mr Al Mahmood asked Mr Rahman to bring him the bags again.  This time, Mr Al Mahmood explained all the login details for the online accounts and handed over bank cards, cheque books and login devices, pin readers and other security items to Mr Rahman.  He said that Mr Rahman now had access to all his accounts and that everything was his.  He also gave Mr Rahman the registered land certificate for his home, told him where the spare keys were, and the long leases of the flats in Sutton and documents relating to the leasehold title.  He said that the house and flats were for Mr Rahman.  Again, only Mr Rahman gave evidence.

On 22 October 2020 Mr Al Mahmood asked Mr Amponsah to come over to get 'the will done now'.  Mr Amponsah said that he had not yet been able to secure any witnesses – this being during the pandemic (it appears he was not aware of the temporary alteration to the law during the pandemic to allow the witnessing of wills by videoconference).

Shortly afterwards a text message was sent from Mr Al Mahmood's phone to Mr Amponsah 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. It’s a difficult time for me. Please help Masud'.  

Decision

The Judge found that Mr Al Mahmood had successfully made deathbed gifts of his bank accounts, Hargreaves Lansdown account, and properties (though not the contents).  

Online bank accounts

The Judge considered how the concept of deathbed gifts applies to modern online financial accounts accessed by electronic tokens and passwords.  He held that, whilst it is true that an account-holder could tell someone their login details and password in order to make a single transaction at the account-holder's direction, the key point is intention.  Was the donor handing over the details with the intention of giving the accounts to the donee?   Mr Al Mahmood's intention to benefit Mr Rahman was clear: he had communicated it not just to friends and the will draftsman in person, but via text.  

The Judge's assessment was that Mr Al Mahmood could not possibly have memorised all the logins and passwords on the list which he gave Mr Rahman.  By handing over the papers to Mr Rahman, he had, practically-speaking, made it difficult if not impossible to deal further with the accounts himself.  The Court found that this was sufficient to demonstrate that the Deceased had 'parted with dominion' over the online accounts, ie they had left his possession.

Registered land

Nowadays, the majority of land in England and Wales is registered.  When registration was first introduced, owners were issued with a land registration certificate (or charge certificate if mortgaged).  Since 2002, the the title is the register – ie no certificate is issued, you just print off the office copy entry if you want to view the title.   

Previous case law established that land could be the subject of a deathbed gift by handing over the title deeds.  Whilst this method would still be applicable to unregistered land, the question of whether registered land could be the subject of a deathbed gift had not been considered by the High Court before.  

There was also the question of whether handing over the land certificate was sufficient to show that Mr Al Mahmood had 'parted with dominion' over the house – despite the fact that land certificates no longer demonstrate title for registered land.

The Court held that there had been a deathbed gift of the property and flats.  The Judge said that there was no reason to distinguish between registered and unregistered land for the purposes of a deathbed gift even though the two types of property are subject to different rules of transfer.  Although land certificates and Land Registry office copy entries do not have any legal function in transferring the ownership of registered land, the Judge again held that the relevant question is the donor's intention.

An appeal on the horizon

The Judge granted the defendants permission to appeal including on the basis that the Judge was wrong to conclude that the bank login details are akin to legal ownership and that that land certificates or copies of leases are 'indicia of title' – ie documents that prove ownership.

As the Judge noted in the hearing, the 'novelty [of applying the doctrine to registered land and to bank accounts using online passwords] and their increasing importance in modern society provide a compelling reason for appeal…'

The appeal is listed (at the time of writing) to be heard in July 2025.    

Take away thoughts

Deathbed gift cases are relatively infrequent.  Nonetheless, it is important for legacy officers to be alive to the doctrine because of the potentially massive impact of a successful deathbed gift on a charity's interest in an estate.  As in Rahman, deathbed gifts frequently involve a donor's most significant asset(s).   

Judges will look carefully at deathbed gifts, because of the inherent vulnerability of the donor and concerns around capacity, to ensure that the doctrine is not abused by unscrupulous 'donees'.  

Deathbed gifts are also the type of case that tend to garner press interest.  The Rahman case is an example of how the media can get the wrong end of the stick – some publications referred to the case as being a Will written by text-message, which was not the case.

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