Rahman v Hassan & Ors [2024] EWHC 1290 (Ch)

Introduction

The judgment was handed down by the High Court on 30 May 2024. It concerned the validity of a gift in contemplation of death by a man (the Deceased) who gifted the entirety of his estate to the Claimant—a distant relative turned close confidant. The Defendants were the brother and nieces of the Deceased’s wife, who stood to inherit the estate under a previous will. After a thorough analysis of the law, The Honourable Mr Justice Paul Matthews found in favour of the Claimant for all assets, except for some chattels and furniture.

The Facts of the Case

The Claimant, having come from Bangladesh, contacted the Deceased and his wife (who had also died prior to the case) in the UK in 2011. The Deceased and his wife also came from Bangladesh and were distant relatives, but they had become close over the years. The deceased couple, having no children, came to rely increasingly on the Claimant and his family with age. In 2015, when the Claimant and his wife considered moving back to Bangladesh due to their unsettled immigration status, the Deceased wrote a letter of recommendation to the Home Office to assist. In the same year, the Deceased couple drew up separate wills, leaving everything to the other should one die. The beneficiaries, should they both die, were to be the nieces and brother of the wife.

In October 2020, the wife passed away. In line with her wishes, the contents of her estate went to her husband. Two weeks later, the husband also passed away. The Deceased made many statements in the presence of witnesses that he wished to leave his possessions to the Claimant. Prior to his passing, the Deceased was convinced of his imminent death and made plans for a new will naming the Claimant as sole beneficiary. Notably, this new will was not witnessed before the Deceased died.

It appeared that upon realising that the will would likely take time to witness, the Deceased made several gifts to the Claimant. First, he placed in the Claimant’s possession the login details and security information for all his bank accounts. Second, he gave the registered land certificate of the main house and the details for separate flats in Sutton. Finally, hours before the Deceased died, he sent a text message to his will writer, which read as follows:

“Jonathan, I am al-Mahmood. I agreed that Masudur Rahman 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[s] done by me and my wife. It’s a difficult time for me. Please help Masud.”

In light of these actions, His Honour Mr Justice Matthews (HHJ Matthews) was faced with deciding where the assets were to go. The judgment provides a thorough overview of gifts and wills, examining inter vivos gifts (gifts made during the person’s life) and oral wills in conjunction with deathbed gifts. In reaching his decision, HHJ Matthews gave a helpful summary of the law surrounding gifts and wills and the use of the doctrine of donatio mortis causa. Indeed, it may be helpful here to refresh our understanding of the requirements of revocation and execution of wills before discussing the validity of deathbed gifts.

The Law

Per section 9 of the Wills Act 1837, a will must be intended to be made and signed by the creator in the presence of two witnesses, who must also sign. Under section 20, no will is “to be revoked but by another will or codicil, or by a writing executed like a will, or by destruction.” Under section 21, “[n]o alteration in a will shall have any effect unless executed as a will.” It also allows for alterations to be valid on an old will if they were acknowledged by the creator and witnessed by signatures somewhere on the original will.

HHJ Matthews acknowledged that these requirements had patently not been complied with. The Deceased had not seen the new will that he had ordered, and it had definitely not been witnessed or signed. Although parts of the old will had been crossed out, there was no argument for revocation or alteration, which HHJ Matthews assumed was due to a failure to meet the legal requirements. As such, there was no argument over the revocation of the 2015 will or the validity of the new will. The key discussion, therefore, was whether the actions of the Deceased constituted a valid gift to the Claimant—particularly due to the transfer of property in this case.

An inter vivos gift between two people is not executed on the condition of the donor’s death. The property and chattels must be validly delivered to the donee, and the donor must have the capacity to make the transfer. Such transfers must be made in writing if they concern land, under section 52 of the Law of Property Act 1925.

This can be compared to the doctrine of donatio mortis causa, a Roman phrase adopted in the medieval period and later refined in the 20th century. It quite simply translates as a “gift in contemplation of death.” This doctrine validates gifts made where the donor is contemplating imminent death. To satisfy this doctrine with respect to land, the donor must deliver ‘dominion’ of the object to the donee. It must be made in contemplation of the donor’s imminent death, and the gift is conditional upon death. Although the doctrine has fairly narrow requirements, it has been acknowledged as open to abuse because it is possible to transfer land orally under this doctrine.

The Judgment

HHJ Matthews acknowledged that the operation of this doctrine is straightforward for unregistered land, where a title deed can be handed over. However, for registered land (as most land is today), it creates an interesting conundrum. In this case, the Deceased handed over the registered land certificates. The usual way for registered land to be gifted is through a transfer deed that is signed by both parties and sent to HM Land Registry. It is not possible to do this orally.

The ‘novel’ question of the legal position over registered land and this doctrine had previously been uncertain. The most recent case that may have concerned it in 2021 was left undecided because the claim had already failed for unrelated reasons. The key case, therefore, was the 1991 case of Sen v Headley [1991] Ch. 425, which involved the transfer of title deeds of unregistered land and was found to be a valid DMC. The Defendants in this case submitted that Sen only applied to unregistered land and should not be extended to registered land. HHJ Matthews rejected this argument. Sen, in his opinion, was about the idea of land in general being subject to DMC. He reasoned that there was no mention of unregistered or registered land in Sen. Thus, HHJ Matthews found that giving over the registered land certificate was enough to show parting with ‘dominion’ over the land.

Commentary

The judgment found that the actions of the Deceased satisfied all the requirements for a gift made in contemplation of death and demonstrated a clear intention as to what was to be given. It also helped settle a long-standing debate over whether such doctrines could apply to registered land. Although the Claimant ultimately could not claim certain chattels because they had not been delivered to him as required, the crux of the case rested on judicial interpretation of intention. Indeed, HHJ Matthews’ obiter comments highlighted that it was not about the fact that it was the registered land certificates that were handed over, but rather the intention that the act showed. He even suggested that an “office copy entry of the register” would have sufficed, so long as the intent was clear—a powerful reminder of the flexibility of the law to uphold the wishes of a party and prioritise practicality over formality. For now, this judgment has brought some much-needed clarity to this area of land law. However, this is unlikely to be the end of the saga. As of the time of writing, permission to appeal has been granted on several grounds—most notably, the focus on the intention to make the gift and the relationship between DMC and registered land. The court noted that “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.”

By Leah Krishnarayan