Analysis
The claimant was a distant relative of the late Mr Al-Hasib Al Mahmood (the deceased) and had become increasingly close with the deceased in the period since the claimant had moved to England. The claimant, and the claimant’s wife, had provided a great deal of care and assistance to the deceased and the deceased’s wife. Eventually, the claimant had moved in with the deceased and his wife.
The claimant alleged that on two separate occasions, five days apart from one another, the deceased performed acts amounting to donationes mortis causa, in favour of the claimant, regarding all his assets in the UK. These assets included chattels, bank accounts and other choses in action, and registered land (both freehold and leasehold). The assets in the UK estate included assets formerly belonging to the deceased’s late wife, either because they were inherited from her on her prior death or because they were owned as beneficial joint tenants and he survived her.
The defendants to the claim were blood relatives of the late wife of the deceased and were the beneficiaries of the deceased’s estate under the terms of his 2015 will, which had been admitted to probate. They opposed the claimant’s claim, expressing scepticism about his account of the alleged acts of donationes mortis causa, and even expressing a concern that in their view it was possible that the claimant may have been implicated in the deceased’s death, by having deprived the deceased of his medication.
These concerns notwithstanding, the judge was satisfied that none of the witnesses were deliberately lying or trying to mislead the court. In particular, he accepted the claimant’s evidence that he and his wife had grown increasingly close with the deceased and the deceased’s wife and had provided them with significant care and assistance, increasing in scope over time, until the deceased and his wife had both died.
When the deceased’s wife had died, the deceased had become ‘fatalistic’ and had concluded that he himself had only a short time left to live and needed therefore to put his affairs in order. The deceased told friends who visited him to pay condolence that the claimant would be organising the funeral for his wife and that, figuratively speaking, the claimant was his son, who would benefit after his death. The deceased further offered the claimant’s wife all of his late wife’s things (as indeed, prior to her death, the deceased’s wife had made gifts to the claimant’s wife, including a sari, jewellery and money). He also agreed to sell his late wife’s car to a friend of the claimant, directing the buyer to pay the purchase money to the claimant, on the basis that the money was to be his anyway.
To that end he had contacted a solicitor, instructing him that the claimant was a son to him, and that he wished to make a new will, replacing his earlier 2015 will. Under the 2015 will, his wife had been the sole beneficiary, but in the event that she predeceased him, his assets would be left to her relatives. The replacement will was instead to leave everything to the claimant. While the claimant had been present at the meeting at which these instructions were given, the solicitor, whom the court had found to be a ‘particularly impressive’ witness, confirmed that the claimant did not prompt or seek to influence the deceased in the instructions he gave.
On the same day, the deceased asked the claimant to bring down the bags of documents from his office upstairs, and took the claimant through the documents contained in them instructing the claimant as to what he would receive under the new will. Five days later, concerned that he had yet to receive the will for execution, the deceased again asked the claimant to bring the bags from the office, this time into his bedroom. On this occasion, the deceased gave the claimant all the security devices, logins and passwords that were needed to access his bank and similar financial accounts, telling him that everything was his. He similarly handed over to the claimant the land certificate for the matrimonial home and all the documents relating to two further flats in Sutton on which he held leases, telling him that they were for him. Having done so, he said that it did not matter if the will writer came or not.
The issues which the court had to decide in determining whether there had been valid and effective donationes mortis causa of the UK assets were:
- (1) Was the deceased attempting to make a nuncupative will or a gift of his assets?
- (2) If a gift, was it made in contemplation of his impending death?
- (3) If a gift, was it made conditionally on his death?
- (4) If a gift, did the deceased deliver and ‘part with dominion’ of the subject matter or some equivalent?
- (5) Was there any legal bar to the subject matter being subject to a donatio mortis causa?
- (6) Did the deceased have capacity to make the gift?
Held:
The entirety of the UK estate, with the sole exception of the contents of the matrimonial home and the two flats, would pass to the claimant pursuant to successful donationes mortis causa.
The validity of inter vivos gifts made by the deceased and his wife, of clothing, jewellery and money, to the claimant and his wife could not be impugned. Any items taken by the claimant’s wife following the deceased’s indication that she could have any that she wished to take became hers by gift.
The judge conducted an extensive review of the applicable case law on donationes mortis causa, and distilled the central elements of the doctrine as the following:
- (1) A donatio mortis causa is a gift made by a living person in contemplation of impending death, subject to the condition that the donor dies. The condition may be precedent (the usual case), in which case ownership passes only on death, or subsequent. If the title of the donee is not complete, a constructive trust is imposed on the personal representative of the deceased donor to perfect the donee’s title.
- (2) The donatio mortis causa is revocable by the donor at any time until death, and is revoked automatically by insolvency, and may also be revoked by insanity.
- (3) For the donatio to be valid, the donor must take a sufficient step to implement the gift by delivering to the donee the thing itself, or some means of accessing or controlling the thing (eg the key to a box in which it is contained, or a document – or indicia – of title, though this need not contain all the essential terms of any applicable contract). It is not necessary (at least in the case of a donatio mortis causa subject to a condition precedent) that this step be such as would pass ownership in the case of an inter vivos gift.
- (4) In the case of choses in action and land, at least, there is an additional requirement that the donor part with ‘dominion’ over the relevant property. In such cases it will be satisfied by handing over possession of documents of title (but there may be other ways of doing so). Giving up dominion does not, however, require parting with ownership (for in most cases the property passes only on death) or possession (dealt with under (3) above). Nor does it mean ceasing to be able to deal with the property (because the gift is inherently revocable, under (2) above).
- (5) The property which may be the subject of a donatio includes chattels, choses in action and interests in land.
Although the deceased’s original explanation to the claimant of the financial documents retrieved from his office had been a mere attempt to explain to the claimant what he would be receiving under the terms of the replacement will (and hence not to effect a gift in contemplation of his impending death, as required for a donatio mortis causa), matters were different on the second occasion when these documents were explained. By that second occasion, the deceased had become agitated by the lack of progress with the will, and was attempting to resolve matters by gifting the assets which he then explained and dealt with to the claimant. He gave claimant all the security devices, logins and passwords that were needed for accessing his bank and similar financial accounts, telling him that everything was his, and similarly handed over to the claimant the land certificate for the house and all the documents relating to the flats, telling him that they were for him. These gifts satisfied the requirements for a donatio mortis causa of the contents of the bank accounts and the properties themselves, but not their furniture or contents.
The deceased contemplated his impending death, and made the gifts on the condition that he died, which then happened within three days of the gifts. He did nothing to revoke the gifts before he died, and implemented them by:
- (1) handing to the claimant the land certificate for the house (for which he already had the house keys) and the leases for the rented flats; and
- (2) 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.
In so far as it was necessary for the deceased to ‘part with dominion’ of these assets, he had done so by taking those steps.
In particular, as to whether the documents given to the claimant on that occasion constituted the required ‘indicia of title’, the login details and passwords for the various electronic accounts served to identify the user as the account holder, and enable them to operate the account; these were the indicia of title in the computer age. The question was ultimately one of the evidence of the intention with which the relevant indicia were provided, and the court was entirely satisfied that the deceased’s intention in providing these login details was to give the claimant the accounts and their contents. As to whether the deceased had ‘parted with dominion’ in respect of the accounts, given that the deceased had very many such accounts and that, as an elderly and unwell man, he could not have remembered all of the login details without access to the papers which he had handed over to the claimant, by handing over those papers he had put it out of his power to deal any further with those accounts, and thereby had parted with dominion over those accounts.
As to the matrimonial home, handing over the land certificate in respect of the property was sufficient. It was clear that doing so would have been sufficient prior to the introduction of the new regulatory regime and the abolition of land certificates, and the court could see no reason that this should have ceased to be sufficient following the introduction of that new regime. Although following the change, it was now possible to alter the title without presentation of the land certificate, this was possible prior to that change, where an application to register a change without such a certificate was accepted. Moreover again, the question was ultimately one of evidence of intention, and the court was satisfied that by giving over the land certificates to the claimant, the deceased had intended to give the property to him.
Similarly, in relation to the other properties, passing the leases and the official copies of the register showing the titles to them to the claimant sufficed for these purposes. It was settled that handing over the leases would have been entirely sufficient had the land been unregistered, and again the court could see no reason why the registration of the land should prevent the leases from being adequate indicia of title. Since it was clear that by passing these documents to the claimant the deceased had intended to pass the properties themselves, doing so was sufficient delivery of the properties.
There was evidence that the deceased had capacity to act as he did, and no evidence to suggest a lack of such capacity.
None of this, however, sufficed to make a donatio of the contents of the various properties. Although the deceased had told the claimant that the contents were to belong to him after his death there was no attempt by the deceased to deliver the chattels to the claimant. Therefore those chattels were not the subject of a valid donatio.
JUDGMENT HHJ PAUL MATTHEWS: Introduction General [1] This is my judgment on the trial of a claim for declarations relating to transactions alleged to have taken place between the claimant and the late Mr Al-Hasib Mian Muhammad Abdullah Al Mahmood (to whom I shall generally refer to as ‘the deceased’, or ‘Mr Al Mahmood’). It …Continue reading "Rahman v Hassan & ors [2024] WTLR 1069"