Can a Deathbed Gift override a Will?

What is a DMC?

Donatio Mortis Causa (DMC), or deathbed gifts, are relatively rare. For a DMC to be valid, three key conditions must be met:

1. Contemplation of Death: The donor must make the gift anticipating their imminent death.
2. Conditional and Revocable: The gift must depend on the donor’s death and be revocable until that event.
3. Parting with Dominion: The donor must relinquish control over the gift’s subject matter, whether physically or through means to access it (eg keys or documents).

Parting with dominion is a nuanced concept, especially in the modern context where proof of ownership often exists electronically. Traditional evidence of ownership, like property deeds or bank passbooks, is becoming obsolete, replaced by digital records, meaning no physical document can be handed over.

The facts in Rahman v Hassan

In this case, Mr Al Mahmood (M), who passed away on 23 October 2020, had a will from 2015 leaving his estate to his late wife’s American relatives. However, Mr. Rahman (R), who was seen by M as a surrogate son, claimed he had received an effective DMC of several assets, including three registered properties, various bank accounts and shares held in a Hargreaves Lansdown share dealing account.

M, suffering from serious health issues and fearing imminent death, expressed his wish to make a new will naming R as the sole beneficiary and executor. The solicitor arranged to return with the draft will once he had spoken to M’s GP. Although the new will was not executed, the solicitor gave evidence at trial that M gave clear instructions for it.

After the solicitor had left, M showed R documents relating to his assets and provided access to his online accounts, explaining that he would die soon and would be giving all these assets to him.

On the day before his death, M reiterated his intentions via text messages to his solicitor and a relative, confirming that R was to be the absolute owner of all his assets and the executor of his will. 

A modern approach to DMCs

Registered land

Previous case law clarified that unregistered land can be the object of a deathbed gift. It is clear to see that handing over a bundle of deeds can be considered an intention to part with ownership. However, the position was not clear for registered land. The Judge, in this case, held that in principle, registered land can be the object of a valid deathbed gift. He emphasised that handing over a land certificate or even an official copy of the register can serve as an “indicium of title”, demonstrating the intention to gift.

Bank accounts/shares

For electronic assets, the Judge focused on the donor’s intent to part with possession. The judge noted that providing access details (such as login information) effectively removed the donor’s control over the accounts, fulfilling the DMC requirement, even if access was not an impossibility. 

What about modern technology?

As more assets are managed digitally, the concept of ‘parting with dominion’ becomes more complex. For instance, handing over an unlocked smartphone or login details to online accounts could theoretically satisfy the requirement, raising concerns about potential abuse. The elderly or vulnerable could be particularly at risk if those around them misuse such access.

Courts are likely to require corroborative evidence of the donor’s intention. This is to mitigate the risk of fraud or undue influence which, in turn, will involve more stringent scrutiny of the circumstances under which access details were shared and whether the donor truly intended to make a gift.

In summary

While the case of Rahman v Hassan underscores the evolving nature of DMCs in the digital age, it also highlights the need for clear evidence of the donor’s intentions.

If you would like to discuss deathbed gifting, please contact Fiona Lawrence in our Inheritance & Will Disputes team on 07909 901 370. Alternatively, you can fill out the form below.