In Masudur Rahman v Dewan Raisul Hassan & Ors [2024] EWHC 1290 (Ch), it was held that a gift made in contemplation of one’s death can override an otherwise valid Will.
A Gift in Contemplation of Death, or ‘donationes mortis causa’ is a gift made on the condition that it only becomes effective upon the death of the individual making the gift.
Facts
Al-Hasib Al Mahmood (Al Mahmood) made a Will in 2015 leaving his entire estate, worth approximately £2.8 million, to his late wife’s brother and three nieces. However, during the COVID-19 pandemic, Al Mahmood expressed his intentions to make a new Will that would leave his entire estate to Masudur Rahman (Rahman) who lived with and took care of Al Mahmood and his wife.
Al Mahmood was unaware of the temporary law implemented during the COVID-19 lockdown, which permitted the witnessing of a Will through video calls. Therefore, Al Mahmood did not execute his new Will.
Instead, on 15 and 23 October 2023, Rahman stated that Al Mahmood gifted all of his assets subject to the condition that the gift would only pass upon Al Mahmood’s death. Al Mahmood also sent a message to a Will draftsman supporting Rahman’s assertion. The message stated:
“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.”
In addition to giving the gift verbally to Rahman, Al Mahmood also gave Rahman all the security devices, logins, and passwords needed for accessing his financial accounts. He also gave Rahman the land certificate for his London house and all of the documents relating to his flats in Sutton.
Was the gift able to override Al Mahmood’s valid 2015 Will?
The case was heard before the High Court where High Court Judge Paul Matthews held that the gift constituted a gift made in contemplation of death which when made is able to override the terms of a valid Will.
Al Mahmood made the gift believing that he was dying and with the intention the gift would only become effective upon his death. Al Mahmood giving Rahman the security devices, logins and passwords needed for accessing his financial accounts as well as property documents constituted effective delivery of said assets.
Rahman’s claim was successful except for the furniture and items in the house and flats as these were not adequately delivered.
Comment
It is possible for a gift in contemplation of death to override a Will if the following four requirements are met:
1. The donor believed that they were going to die when they made the gift. It does not matter if they were mistaken in their belief;
2. The gift is made on the condition that it only becomes effective on the donor’s death;
3. The gift must be able to be given to another. This is largely dependent on case law;
4. The gift must be effectively delivered. This can be the forfeit of control of the asset such as giving the keys to a property; however, this is also heavily dependent on case law and will vary from case to case.
How can we help?
Amrik Basra is a Trainee Solicitor in our Private Litigation team.
At Nelsons, our team specialises in these types of disputes and includes members of The Association of Contentious Trust and Probate Specialists (ACTAPS). The team is also recommended by the independently researched publication, The Legal 500, as one of the top teams of specialists in the country.
If you have concerns about the validity of a Will, please contact Amrik or a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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