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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Rahman v Hassan & Ors [2024] EWHC 1290 (Ch) (30 May 2024) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2024/1290.html Cite as: [2024] EWHC 1290 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Rolls Building, Fetter Lane, London, EC4A 1NL |
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B e f o r e :
(sitting as a Judge of the High Court)
____________________
MASUDUR  RAHMAN | Claimant |
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| - and - |
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| (1) DEWAN RAISUL HASSAN (2) LANA BASNEED ZAMAN(3) AMANI ZAMAN (4) FARIHAH ZAMAN |
Defendants |
____________________
Owen Curry (instructed by Trowers) for the Defendants
Hearing dates: 28 November to 4 December, 11- 12 December 2023
____________________
VERSION OF JUDGMENT
Crown Copyright ©
HHJ Paul Matthews :
INTRODUCTION
General
very grateful to Mr Singh KC.
Procedure
The claimant's case in summary
visiting them several times a week and often staying overnight. Finally, he says, he moved in with them, at their house at 98 Streatham Road, Mitcham, London CR4 2AB. After the death of the deceased's wife, so did the claimant's wife and child.
value of the UK estate for probate purposes was stated to be £1,408,634. However, interim administration accounts prepared on behalf of the first and second defendants showed an estate with a total value of £3.15 million, although that includes non-UK assets valued at £310,000.
valid and effective, the asset or assets so disposed of falls or fall outside the deceased's estate, and therefore the 2015 will. The defendants are highly suspicious of the claim of the claimant. It is a feature of this case that the only living witnesses to the events said to amount to donationes mortis causa are the claimant himself and, to a lesser extent, his wife. The defendants can say nothing directly about them. But, of course, there is considerable background and indirect evidence of which I must take account.
HOW JUDGES DECIDE CASES
Burden of proof
Standard of proof
very different from that in a criminal case. In a civil case like this, it is merely the balance of probabilities. This means that, if the judge considers that a thing is more likely to have happened than not, then for the purposes of the decision it did happen. If on the other hand the judge considers that the likelihood of a thing's having happened does not exceed 50%, then for the purposes of the decision it did not happen. It is not necessary for the court to go further than this. There is certainly no need for any scientific certainty, such as (say) medical experts might be used to. However, the more serious the allegation, the more cogent must be the evidence needed to persuade the court that a thing is more likely than not to have happened.
Role of judges
The fallibility of memory
v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [22]. This is not a commercial dispute, but an estate dispute. Nevertheless, it concerns money and property, in the way that many commercial disputes do, and there are a number of useful documents available. This is important in particular where, as here, the relevant facts occurred some years ago, and the memories of the witnesses available have been dimmed by the passage of time.
Reasons for judgment
WITNESSES
Rahman (friend of the deceased's wife), Bodrul Alom (business friend of the deceased's wife), Fatema Khairunnesa (friend of the deceased's wife), the third defendant and the fourth defendant.
varying in standard from adequate to mother tongue. Although there were occasional instances when an answer was not clear and had to be repeated or the question asked in a different way, I am satisfied that each witness was able to tell me the relevant evidence which that witness had to give.
FACTS FOUND
Mr and Mrs Al Mahmood
various investments, including two leasehold flats in Sutton, a managed share portfolio and a number of savings accounts. They had friends and contacts in the London Bangladeshi community. They were observant Muslims. By the time that they met the claimant in 2011 they were both retired, and each had a number of medical conditions. Mr Al Mahmood suffered from chronic kidney disease, ischaemic heart disease, diabetes, high blood pressure, hearing loss and also laryngeal cancer (for which he had been treated). Mrs Al Mahmood had diabetes, which led to high blood pressure, and pneumonitis, causing her breathing difficulties. She also had a knee operation in 2018, causing reduced mobility.
visited London and stayed with Mr and Mrs Al Mahmood relatively frequently. As they got older their visits were fewer.
visit the United States after 2001. The second defendant visited London every year between 2001 and 2007, but not thereafter until she came to give evidence at the trial, The third defendant had not visited London since 2000 (when she was 15 years old). The fourth defendant made a number of visits after 2000 to London where she visited Mr and Mrs Al Mahmood: 3 or 4 times between 2001 and 2005, another between 2005 and 2016, once in each of 2016, 2017 and 2018, and three times in 2019. Visits to London were sometimes specifically to visit Mr and Mrs Al Mahmood. But sometimes they were simply stopovers on the way to Asia, to visit other relatives.
The 2015 wills
The claimant
visit Mr and Mrs Al Mahmood in London, because he and Mr Al Mahmood were distantly related, sharing common ancestors. From a family tree enclosed with the papers, it would appear that the claimant was the second cousin once removed of Mr Al Mahmood, and Mr Al Mahmood was the third cousin once removed of the claimant. The claimant did visit, and struck up a relationship with Mr and Mrs Al Mahmood.
visited at religious festivals and at other times, and assisted them with little tasks and errands, including shopping. As time passed, and they got to know each other better, Mr and Mrs Al Mahmood began to rely even more on him, and he visited regularly, about once a week. Once the claimant's wife had come to London, she too used to visit Mr and Mrs Al Mahmood, though less frequently than the claimant. Mrs Al Mahmood made gifts to the claimant's wife, including a sari, jewellery and money. When the claimant graduated with his LLM degree in 2015, Mr Al Mahmood attended the graduation ceremony at the Royal Festival Hall with the claimant's wife. Mrs Al Mahmood did not attend, as she was unwell.
visit Mr and Mrs Al Mahmood, and later to play in their garden. By this time, Mr Al Mahmood was already treating the claimant and his wife as members of the family, and indeed almost as the children that he never had. In 2018, Mr Al Mahmood offered, and the claimant accepted, £10,000 to do the course in England, which would help the claimant with his immigration status. It appears that money was offered by Mr and Mrs Mahmood on other occasions but the claimant and his wife did not take it.
Mrs Al-Mahmood's final illness and death
visited to pay their condolences. Mr Al Mahmood told them that the claimant (who was present during the visits) would be organising the funeral for his wife. He told some of them that, figuratively speaking, the claimant was his son, who would benefit after his death. He also said the same to some of his wife's relatives in Bangladesh when he telephoned them to let them know that his wife had died. He also called the first defendant in the United States to inform him, and in addition told him that "I have no claim to Bangladesh property, but in UK all is for Masud". With the assistance of Bodrul Alom, the claimant did indeed organise Mrs Al Mahmood's funeral in accordance with Mr Al Mahmood's wishes, and it took place on 9 October 2020. Because of his mobility issues, Mr Al Mahmood was unable to attend. Some of the defendants' witnesses gave evidence that the claimant controlled or restricted access to Mr Al Mahmood. I do not accept this. Mr Al Mahmood had not only problems with his mobility, but also with his hearing. So, meeting anyone in person outside his home and conversation on the telephone were both difficult activities for him. I accept that not all those who telephoned him were able to speak to him. But all those who wished to do so came to his home and could see and speak to him there.
Jonathan Amponsah
very long himself. The claimant explained to Mr Amponsah that Mr Al Mahmood wanted to administer his late wife's estate and make a new will for himself. He further explained that for health reasons Mr Al Mahmood could not visit Mr Amponsah's office. Mr Amponsah confirmed he would come to see Mr Al Mahmood at his home. The appointment was arranged for 15 October 2020.
visit or to help out. After instructions had been given for the new will, they discussed the probate process, how it worked and how long it would take. The meeting lasted 45 minutes to one hour. Mr Amponsah said he would speak to Mr Al Mahmood's GP and return on 22 October 2020 with the new will for execution. Mr Amponsah did this because, although it did not look to him as though Mr Al Mahmood did not know what he was doing, nevertheless, because of his physical condition, he was being cautious. Mr Amponsah was clear in his evidence that the claimant did not prompt, interrupt or seek to influence Mr Al Mahmood in the instructions he gave.
After Mr Amponsah
very large number of bank accounts. In addition, he had an account with Hargreaves Lansdown who acted as his agents for buying and selling both quoted and unquoted company shares. He also had land registry certificates and other documents concerning the house at 98 Streatham Road and the two flats which he owned in Sutton (Flats 2 and 51, Leben Court, 36 Sutton Court Road, Sutton SM1 4FF). It took about 40 minutes to go through all of the documents. Mr Al Mahmood explained each one to the claimant. The claimant asked him why he was doing this. Mr Al Mahmood replied that he was getting old and would die soon, and he would be giving all these assets to the claimant. I find that he was concerned to make sure that the claimant had all the necessary information to take control of all of the UK based assets.
1. ING Bank, No 9072484;
2. Hargreaves Lansdowne, Client No 404065;
3. Premium Bonds, account no 3139827857;
4. Premium Bonds, account no 3139826544;
5. Yorkshire Building Society, customer no 0004008571;
6. Yorkshire Building Society, customer no 0005068685;
7. National Savings and Investments, account no 21065749864;
8. National Savings and Investments, account no 41042205159;
9. Chelsea Building Society, customer no 6959264672;
10. Chelsea Building Society, customer no 6959274974;
11. National Westminster Bank, account 60-21-08, 59573783;
12. National Westminster Bank, account 60-21-08, 59573759.
titles (but not land certificates, because these were no longer issued by the time the leases were granted). He said that the claimant could either take the rents from the flats or sell them to release the capital, and that the envelopes and all the documents in it were for the claimant. The whole conversation lasted about an hour, during which time Mr Al Mahmood repeatedly told the claimant that "Whatever you see of mine is all for you, and you know nothing, for we all belong to God". He also said "It does not matter if Jonathan comes or not. You know everything, and everything is for you." Again, I do not consider that Mr Al Mahmood was trying to make an oral will. He was trying to make a gift, on the basis that he contemplated his own impending death.
Mr Al Mahmood's death
videoconferencing.) This was of course at a time of continuing restrictions on movement and meetings because of Covid. The claimant agreed to try and find witnesses. Subsequently, Mr Al Mahmood and the claimant called Mr Amponsah, and Mr Al Mahmood asked him to come over to get "the will done now". The claimant spoke to Mr Al Mahmood's doctor again, and, after a short consultation about Mr Al Mahmood's health, the doctor prescribed a further medicine for Mr Al Mahmood. The claimant went to the pharmacy, but they did not have the medicine in stock, and, after a further telephone call to the GP practice, the prescription was changed to one which the pharmacy was able to dispense. In fact, Mr Al Mahmood declined to take the medication anyway.
"Jonathan, I am al-Mahmood. I agreed that Masudur
I find that that was sent by Mr Al Mahmood himself.
"Sayam, pray for me. Masud is my son. He is the absolute owner of all my assets. This my final word."
At the trial, Mr Bin Hafez gave evidence that he was suspicious of this text. He said that the timing of the message was quite abnormal, and the English used was unusually poor for Mr Al Mahmood. On the material before me, I am quite satisfied that neither of the claimant and his wife sent the text. On the contrary, I find that Mr Al Mahmood himself did so. I am not concerned about the late hour, because Mr Al Mahmood may well have thought he was dying at the time, and that would have justified the message. Moreover, although Mr Al Mahmood's English was good, other documents written by him, and in evidence before me, show that it was not perfect. In emotionally charged circumstances, small lapses in grammar and spelling in a second language are not unlikely.
Subsequent events
vital to his life. She found the timing of his death suspicious. She said that her sisters shared her suspicions. Because no doctor had seen Mr Al Mahmood in the period leading up to his death, no medical certificate of the cause of death could be given.
Mental capacity and intention
view is confirmed by an email from him in the materials before me. I bear in mind that Mr Al Mahmood was elderly and ill, and that his wife of many years had just died. But there is no evidence that he lacked capacity.
v) given instructions for a new will entirely in the claimant's favour, (vi) given the claimant information about accessing his bank accounts, and (vii) told him the contents were his. In substance, the question for me now is what was the legal effect of all of the actions and events which I have described.
Issues arising for decision
(1) Was Mr Al Mahmood 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 Mr Al Mahmood 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 Mr Al Mahmood have capacity to make the gift?
LAW: GENERAL
vivos gifts. The second relates to wills. The third relates to donationes mortis causa. In fact, there was potentially also a fourth. In his skeleton argument, the claimant argued that, if his claims were otherwise unsuccessful, he should succeed by way of a claim in proprietary estoppel. But this was not at that time reflected in the statements of case. At trial, therefore, the claimant applied for permission to amend his case to plead an alternative claim in proprietary estoppel. After hearing argument, I refused this application, for reasons which I gave at the time. Accordingly, it is not necessary for me to spend any further time on that.
vivos gift, (ii) a donatio mortis causa, and (iii) a testamentary gift (or gift by will). The first is an everyday event. The third, if not an everyday event, is common and well-known. The second is however rare. The first and second may be carried out with or without writing, but the third (with very limited exceptions) only in writing. The first almost invariably takes effect immediately, but the second and third only on the subsequent death of the donor. However, in the second case the death usually occurs shortly after the gift, whereas in the third case it may be much later, years or even decades later. Each of these kinds of gift responds to particular needs. And the requirements for each are subtly (and not so subtly) different.
INTER VIVOS GIFTS
vivos gift is a bilateral (or multilateral) transaction whereby property in a thing is immediately and gratuitously vested by its owner in another or others. It is called inter vivos ("between living people") because it does not take effect on death. The donor must know the extent of the property to be transferred, and must intend to make the gift. In addition, the donee must accept the gift. However, the donee is presumed to accept it unless, upon learning of the gift, the recipient repudiates it. Next, the property in the thing the subject of the gift must be validly transferred to the donee. The formalities for this will vary with the nature of the property: see Scott v Bridge [2020] EWHC 3116 (Ch), [120]-[123], and cases there cited.
v Tucker (1888) 39 Ch D 669; Wrightson v McArthur and Hutchisons (1919) Ltd [1921] 2 KB 807. A gift can be made subject to a power of revocation (TMSF v Merrill Lynch Bank & Trust Co Ltd [2012] 1 WLR 1721, PC), or on condition, whether precedent or subsequent (Ellis v Chief Adjudication Officer [1998] 1 FLR 184, CA). In the case of a gift on condition precedent, property will generally not pass until the condition is fulfilled.
vivos gift will vary with the circumstances of the transaction. A gift that is trivial by comparison with the donor's estate requires only a low degree of understanding. But a gift of most or all of a donor's estate requires the same level of understanding as a will: see Re Beaney [1978] 1 WLR 770, 774 E-F. I am not aware of any authority addressing the question how far the common law test for inter vivos gifts may have been affected by the terms of the Mental Capacity Act 2005. This provides inter alia that (i) for the purposes of the Act, a person must be assumed to have capacity unless it is established that he lacks it (s 1(2)); (ii) a person lacks capacity in relation to a matter if he is unable to make a decision about it because of impairment or disturbance of the mind or brain (s 2(1)); (iii) the donee of a lasting power of attorney has limited power to make gifts of the donor's property (s 12); and (iv) the court has power to make a decision for a person who lacks capacity to make a gift (ss 16, 18(1)(b)). However, the point was not argued before me and, in the circumstances of this case, I do not think that it makes any difference which test is applied, and therefore I need not express a view.
WILLS
validity of a will in English law are set out in section 9 of the Wills Act 1837, as amended. In brief summary, and subject to minor exceptions, a will, whether of realty or personalty, must be made in writing and signed by the testator intending to give effect to it, and the signature attested by two witnesses present at the same time. There was no dispute before me about those conditions. One aspect of them was temporarily relaxed during the Covid pandemic, by the Wills Act 1837 (Electronic Communications) (Amendment) Order 2020/952, as extended by the Wills Act 1837 (Electronic Communications) (Amendment) Order 2022/18, so as to permit witness attestation by video conferencing. However, no advantage was taken of that possibility in the present case.
validity of the existing 2015 will of Mr Mahmood. Consequently, to the extent that assets remained in his estate at his death and were not subject to either a valid inter vivos gift or a donatio mortis causa, the 2015 will would apply to them.
vivos gift, I should add this in relation to capacity to make a will. The common law test for capacity to make a will is that expressed by Cockburn CJ in the well-known decision in Banks v Goodfellow (1870) LR 5 QB 549, 565:
"It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a
v Goodfellow (1870) LR 5 QB 549, 565. Thus, in Re Clitheroe, deceased [2021] WTLR 449, Falk J (as she then was) said:
"79 … Parliament did not intend to alter the common law in respect of testamentary capacity, other than in providing a regime to allow statutory wills to be made on behalf of an individual who is demonstrated to lack capacity."
And, in the most recent decision of the Court of Appeal on the point, that court was content to proceed on that basis, without hearing argument or deciding the point: see Hughes v Pritchard [2022] Ch 339, [62].
DONATIO MORTIS CAUSA
Background
view to a particular contingency such as an existing serious illness or on the eve of battle, became absolute only upon the event of the diagnosed death and thus was inherently revocable, being automatically revoked by the prior death of the donee or the insolvency of the donor": Thomas, Textbook of Roman Law, 1976, Ch XIV, 193-194. It appears that, in Roman law, the condition could be suspensive (so that no property passed until death) or resolutive (so that property passed immediately, but subject to a condition for return): ibid.; Buckland (ed Stein), A Textbook of Roman Law, 3rd ed 1963, CUP, 257.
v Dubrey [2016] Ch 221, Jackson LJ (with whom Patten and Sales LJJ agreed), observed that the doctrine
"37. … made its first appearance in English law in Bracton's De Legibus Et Consuetudinibus Angliae … "
And that he
"53. … must confess to some mystification as to why the common law has adopted the doctrine … at all. The doctrine obviously served a useful purpose in the social conditions prevailing under the later Roman Empire. But it serves little useful purpose today, save possibly as a means of
verbatim from sections of Justinian's Digest and Institutes, and put together in a form which pleased the author: see Woodbine, The Roman Element in Bracton's de Adquirendo Rerum Dominio, (1922) 31 Yale LJ 827, 837-38. On this topic at least, medieval English lawyers looking for their own law in Bracton would (unconsciously) be adopting that of Rome.
via the nascent universities. Where jurists could find no local law on a point, Roman law was looked at, and often pressed into service to fill in the gaps. In England, this was unlikely in relation to land law, where the feudal system already provided the structure and most of the answers.
validity of a donatio mortis causa fell outside the ecclesiastical courts' jurisdiction (except, apparently, in the Isle of Man: Cosnahan v Grice (1862) 15 Moo PC 215. 223), because it was not a probate matter. The donee took against the estate, rather than under it. That meant that occasionally the ordinary civil courts would have to send an issue in a case of donatio mortis causa to the ecclesiastical courts for their opinion: see eg Hurst v Beach (1820) 5 Madd 351.
v Turner (1752) 2 Ves Sen 431, 439-42, were well aware of the Roman origins of the doctrine of donatio mortis causa, and took care to set out the by-then perceived differences between the original Roman law itself and that part which had been received by English law. An even more elaborate and scholarly opinion was given by Lord Loughborough LC (later the Earl of Rosslyn) in Tate v Hilbert (1793) 2 Ves Sen 111. This opinion even took the trouble to point out inconsistencies both in the part of the Digest dealing with donationes mortis causa, and also in Henry Swinburne's famous treatise on wills. (But then Lord Loughborough had been born and educated in Edinburgh, where his father was a judge, and indeed had originally trained as a Scottish advocate, before coming to the English bar.)
v Currie, Mor 3591. However, the earliest English judicial decisions on the subject of which I am aware date from the early eighteenth century. The first appears to be Hedges v Hedges (1708) Prec Ch 269, a decision of Lord Cowper LC. There the Lord Chancellor said (269-70) that the doctrine was:
"where a man lies in extremity, or being surprized with sickness, and not having an opportunity of making his will; but lest he should die before he could make it, he gives with his own hands his goods to his friends about him: this, if he dies, shall operate as a legacy: but if he recovers, then does the property thereof revert to him".
The modern formulation
"A donatio mortis causa is a singular form of gift. It may be said to be of an amphibious nature, being a gift which is neither entirely inter
v Elwes (1827) 1 Bli NS 497, 530; Edwards v Jones (1836) 1 My& Cr 226, 235. Until that moment the gift is revocable: Hedges v Hedges (1708) Prec Ch 269, Jones v Selby (1709) Prec Ch 300, 303, Bunn v Markham (1816) 7 Taunt 224. 232, Re Korvine's Trusts [1921] 1 Ch 343, 348, Sen v Headley [1991] Ch 425, 431H, King v Dubrey [2016] Ch 221, [50]. A similar statement to that in Re Beaumont was made by Farwell J in Re Craven's Estate [1937] Ch 423, 426, although in fact there the transfer of the property appears to have been complete before the death, so that the condition would have been a condition subsequent: see at 429. In such a case, until death the donee would hold the property on trust for the donor: cf Staniland v Willott (1850) 3 Mac & G 664. Both Beaumont and Craven were cited with seeming approval by the Court of Appeal in King v Dubrey [2016] Ch 221, one of two recent decisions of the Court of Appeal on the subject.
v Darton (1851) 4 De G & Sm 517, Knight Bruce V-C held that the doctrine had not been abolished by the Wills Act 1837. Despite that, a donatio mortis causa is not an inter vivos gift, divorced from the inheritance. Because it is in the nature of a legacy, taking effect from death, it therefore is subject to the deceased's debts for the purposes of administration: Smith v Casen (1718) 1 P Wms 406n; Tate v Hilbert (1793) 2 Ves Sen 111, 120; Re Korvine's Trust [1921] 1 Ch 343, 348. It will also lapse if the donee dies first: Tate v Hilbert (1793) 2 Ves Sen 111; Walter v Hodge (1818) 2 Swanst 92.
v Moon [1896] 2 QB 983, 986; Re Craven's Estate [1937] Ch 423, 426; Delgoffe v Fader [1939] 1 Ch 922, 927. The policy is that, where the donor does not contemplate impending death, he or she should make a will in the usual way: see King v Dubrey [2016] Ch 221, [56]. Similarly, if the gift is made in contemplation of impending death, but the donor recovers from the dangerous situation which causes that contemplation, the gift is automatically revoked (Woodard v Woodard [1995] 3 All ER 980, 984, CA), and, if property has already passed to the donee, the donee holds it on trust for the donor: Staniland v Willott (1850) 3 Mac & G 664 . On the other hand, if the donor, still being in contemplation of death from one cause, in fact dies from another cause, the donatio mortis causa is valid: Wilkes v Allington [1931] 2 Ch 104, 110-11.
Capacity
valid donatio mortis causa: Re Dudman [1926] 1 Ch 553, 555; see also Staniland v Willott (1850) 3 Mac & G 664. (There was no suggestion of "insanity" on the part of Mr Al-Mahmood, and what exactly "insane" means in today's more sophisticated mental health world must therefore be left to another case.) And, in Re Korvine's Trust [1921] 1 Ch 343, 348, it was held that, at least for choice of law purposes, the law governing a donatio mortis causa was that of inter vivos gifts rather than succession. That apart, those writers on the subject that consider the question of capacity treat it as similar to the question arising in relation to inter vivos gifts. There was no argument before me for a different test. If that is so, and for the purposes of the present case I shall so treat it, then the discussion earlier in this judgment about the possible impact of the Mental Capacity Act 2005 applies also in this context.
Formalities
Chattels
v Dawson (1725) Sel Cas t King 14; Miller v Miller (1735) 3 P Wms 356, 358; Hardy v Baker (1738) West t Hard 519; Ward v Turner (1752) 2 Ves Sen 431; Tate v Hilbert (1793) 2 Ves Sen 111; Duffield v Elwes (1827) 1 Bli NS 497. In Hedges v Hedges (1708) Prec Ch 269 the phrase "gives with his own hands his goods" was used, and Drury v Smith (1717) 1 P Wms 404, 405, referred to "transmutation of possession. But these are synonyms of delivery. Indeed, the chattel concerned may have already been handed over to the donee by the donor on an earlier occasion and for a different reason: Cain v Moon [1896] 2 QB 283; Woodard v Woodard [1995] 3 All ER 980, 984, CA. It does not matter if the property is handed back to the donor for safekeeping in the meantime: Re Hawkins [1924] 2 Ch 47. In Wilkes v Allington [1931] 2 Ch 104, 109, a case about a donatio mortis causa of mortgages, where the deeds were handed over, Lord Tomlin simply said that there must have been delivery to the donee of the subject matter of the gift, which succeeded.
v Grice (1862) 15 Moo PC 215, 223:
"Cases of this kind demand the strictest scrutiny. So many opportunities, and such strong temptations, present themselves to unscrupulous persons to pretend these deathbed donations, that there is always danger of having an entirely fabricated case set up. And, without any imputation of fraudulent contrivance, it is so easy to mistake the meaning of persons languishing in a mortal illness, and, by a slight change of words, to convert their expressions of intended benefit into an actual gift of property, that no case of this description ought to prevail, unless it is supported by evidence of the clearest and most unequivocal character."
Similar statements may be found in other cases, such as Staniland v Willott (1852) 3 Mac & G 664, 669-70 (Lord Truro), and King v Dubrey [2016] Ch 221, [51], [64], [90].
"It was urged that [the donee's] evidence was not corroborated, and that the Court will not establish a claim against the estate of a deceased person on the evidence of the claimant alone unless it is corroborated. I do not think that this proposition is now law. Where a claimant's case depends entirely on his own evidence the Judge ought to sift that evidence
valid donatio mortis causa, just as there are for a contract, or a trust, or other legal transactions, and, if in issue, these will be tried in the usual way. Thus, in Re Wasserberg [1915] 1 Ch 195, a husband who was about to undergo a surgical operation owned bearer bonds which he kept at his bank. He wished his wife to have them in case of his death. He visited the bank, and, in the presence of his wife, he put the bonds into an envelope on which he wrote his wife's name, and replaced the envelope in his deposit box. He left the locked box at the bank but took away the key. He gave the key and a list of the bonds to his wife, which she locked in her own drawer. Sargant J held that there was no sufficient delivery of the bonds to the wife which would have passed property in an inter vivos gift. But he held that that was not fatal, and that in the instant case the donatio mortis causa was valid.
"When it is once admitted that any property is a possible subject-matter for a donatio mortis causa—and in fact chattels of all kinds are much more obviously and readily within this category than choses in action—I can see no more reason for declining to give effect to an incomplete or inchoate gift in the case of the one class of property than in the case of the other. The requirement that there should be some act towards gift or transfer avoids equally in both classes of property the dangers of attaching to mere nuncupative legacies which were guarded against by the Statute of Frauds, the predecessor in this respect of the Wills Act, 1837; and there is no reason in the nature of things why chattels as well as choses in action should not be in such a position that there should be some physical thing the possession of which should be required in order to get at the property and the transfer of which should accordingly amount to a transfer of the means or part of the means of getting at the property."
very idea of a donatio mortis causa, a gift made in life to take effect on death, and once you accept that, in principle, it applies to chattels, choses in action and land (as the cases now establish) it is impossible to object to it in a particular case by saying that it avoids the requirements of the Wills Act 1837, or lends itself to the defrauding of heirs. Of course it does, but the objection proves too much. The safeguard is the ability of the trial judge to discern who is telling the truth, an everyday exercise for judges in our system.
v Blewitt (1798) 2 Esp 663, Lord Kenyon CJ not only referred to parting with possession, but also said that the deceased must "part with dominion" of the thing given. Similar references are found to retaining dominion in Reddel v Dobree (1839) 10 Sim 244 and Re Johnson (1905) 92 LT 357. In modern times, Farwell J in Re Craven's Estate [1937] Ch 423, 426, and the Court of Appeal in Birch v Treasury Solicitor [1951] Ch 298, used the same phrase, that the donor "must part with dominion over" the subject matter of the gift. The question is what exactly that means.
Vallee v Birchwood [2014] Ch 271, [42], the deputy judge called the concept of dominion "a slippery one", and, in King v Dubrey [2016] Ch 221, [59], Jackson LJ agreed with him. In fact, in that case Jackson LJ actually conflated the two concepts of delivery and dominion, by saying (emphasis supplied) that
"59 … D [ie the donor] should deliver 'dominion' over the subject matter. Since property will not pass until a future date (if ever) and D has the right to recover the property whenever he chooses, it is not easy to understand what 'dominion' actually means. I take comfort from the fact that even chancery lawyers find the concept difficult. Buckley J in In re Beaumont [1902] 1 Ch 889 said that it was 'amphibious'. The deputy judge in
I will come back to the last sentence of this paragraph a little later in this judgment.
v Blewitt, Reddel v Dobree, and Re Johnson) are all "locked box" cases, where the putative donor gave possession to the putative donee of a locked box, but either the key was retained by the putative donor, or it was given but to be held to the putative donor's order. In each case the claim to a donatio mortis causa of the contents of the box (cash or securities) failed, because although possession of the box was given the putative donor retained control ("dominion") of the contents through the key. In these cases, the opposition between physical possession of the box and dominion over the contents is clear. On the other hand, Jones v Selby (1709) Prec Ch 300, Re Taylor (1887) 56 LJ Rep 597, Re Mustapha [1891] WN 201, 8 Times LR 160; Re Wasserberg [1915] 1 Ch 195, and Re Lillingston [1952] 2 All ER 184, are all cases of the converse situation, where the donor gave the key of a deposit or cash box (or to a piece of furniture where the key to such a box was to be found) to the donee, but the box itself remained with the donor or an agent of the donor. In Jones v Selby the claim to a donatio mortis causa failed on the facts (for two independent reasons: first, the plaintiff had not proved that the contents claimed were in the trunk at the time of the gift at all, but, second, there was a subsequent will which satisfied the gift: cf Hudson v Spencer [1910] 2 Ch 285, 289). However, in the other cases it was held that there was a good donatio mortis causa of the contents. Only in Wasserberg was any mention made of "dominion", and even then it was only partial.
Choses in action
v Selby (1709) Prec Ch 300. Another was Snelgrave v Bayly (or Baily) (1744) Ridg t H 202, 3 Atk 213. In the former the claim failed on the facts and no particular consideration was given to the question of the nature of the property purportedly given. In the latter, Lord Hardwicke LC held that, since an equitable interest in chattels could be the subject of a donatio mortis causa, and the chose in action represented by a bond under seal could be assigned in equity, so it could be the subject of a donatio mortis causa, so long as the bond itself was physically delivered to the donee. He referred to the decision in Jones v Selby, which he said did not contradict his view.
v Turner (1752) 2 Ves 431, Lord Hardwicke LC went into the subject of a donatio mortis causa of a chose in action in more detail. He examined several civil law texts, and considered (at 441) that
"the civil law has been received in England in respect of such donations only so far as attended with delivery, or what the civil law calls traditio …"
In that case, he held that delivery to the putative donee merely of receipts for the purchase money of three annuities was no sufficient delivery for a valid donatio mortis causa of the annuities themselves. He accepted (at 443) that delivery of a symbol such as a key to a trunk containing chattels could create a valid donatio mortis causa of the chattels because
"delivery of the key of bulky goods … has been allowed as delivery of the possession, because it is the way of coming at the possession, or to make use of the thing."
However, receipts for the purchase price of stock or annuities were of no value after receiving the property: they were
"no evidence of the thing or part of the
title to the property was picked up by later judges. In Duffield v Elwes (1827) 1 Bli NS 497, Lord Eldon said (at 537) that Lord Hardwicke LC in Ward v Turner had been of opinion that "where no document of the title has been delivered there can be no transfer of the property" (emphasis supplied). In Re Dillon (1890) 44 Ch D 76, the donor had a banker's deposit note for £580, which bore a form of cheque indorsed on it. In his last illness he filled out the cheque form on the reverse "pay self or bearer" and signed it, and gave the note to his sister in law then present, conditionally on his not recovering from his illness. The donor died four days later. Cotton LJ said (at 82):
"The case of Moore
Lindley and Lopes LJJ gave concurring judgments. The cheque form on the reverse was irrelevant. It was the delivery of the deposit note which mattered.
title to property" (emphasis supplied). He concluded (at 896-97) that drawing the cheque and handing it to the donee "did not amount to such a traditio as was required in order to give the donee a right" on the death of the donor to the sum indicated, even if the account had been in credit.
v Parker (1818) 3 Madd 184, and in Re Mustapha [1891] WN 201, 8 Times LR 160, the deceased handed over possession of bonds to the donee (in the latter case by handing over a key giving access to them), and it was held in each case that there was a good donatio mortis causa. Plainly, the bonds themselves were documents or indicia of title, even though the right to sue on them was not thereby transferred at law from the donor to the donees. There were good gifts of the bonds in equity, and the donees could if necessary sue the obligees in the names of the donor's personal representatives.
visited the donor in hospital, he told her that, with the exception of the £100 for the uncle, everything was for her. A few weeks later he died in hospital, and letters of administration were granted to the uncle, who brought the proceedings for the court's decision as to the validity of the donatio mortis causa.
valid donatio mortis causa at all, as it was indistinguishable from railway stock, which had been so held in Moore v Moore (1874) LR 18 Eq 474. (I will return to gifts of shares.) Secondly, he held that the Post Office savings account could be the subject of a valid donatio mortis causa. He said (at 685):
" … the test appears to be whether or not the document, besides acknowledging the receipt of the money, expresses the terms on which it is held, and shews what the contract between the parties is. … An examination of the savings bank book in the present case appears to me to shew a fulfilment of the test; and although every rule regulating the contract is not set out in the book itself, all the essential rules are. The book is not a mere receipt."
v Fader [1939] 1 Ch 922, the donor whilst seriously ill at the house of a friend asked her friend to visit the donor's house and bring her back a handbag. The donor checked its contents and asked for it to be placed in a wardrobe in the room. She told her friend that, if the donor died, the friend was to have it and its contents. The donor died a few days later, when the bag was found to contain money, jewellery and a bank deposit book Luxmoore LJ held that there had been a valid donatio mortis causa of the money and jewellery, but not of the deposit book. The judge said (at 928):
"Of course, in the case of a chose in action, physical delivery is impossible, but it has been held that in such cases the delivery of a document essential to its recovery may be sufficient. The test whether the delivery of the document constitutes a good donatio mortis causa of a chose in action depends on the answer to the question whether the document expresses the terms on which the subject-matter of the chose in action is held by the donor or the terms under which the chose in action came into existence."
"I see no difference between this deposit book and the ordinary pass-book of a current account. That being so, I must hold that, at any rate so far as the deposit book is concerned, it is not the subject-matter of a
valid donatio mortis causa.
v Moon was. Farwell J (fils) said (at 427):
"I have considered what was the reason for imposing as a condition of a
"I know of no decided case in which the question has arisen whether the handing over of a box and one key, it being proved that there was another key retained by the donor, would be sufficient, but in the absence of authority, in my judgment, it would probably be held not to be sufficient parting with dominion because the donor would have retained dominion over the box and the contents of the box by retaining the power to open it although it might be in the possession of the donee. However that may be, it seems to me that there must be such a parting with the dominion over the chattels or the property as to prevent the subject-matter of the donatio being dealt with by the donor in the interval between the donatio and either the death or the return of the articles by the donee to the donor."
"Having regard to those principles I must consider what is the effect of the giving of the power of attorney in this case. The position of the donee of a power of attorney is merely to act as agent for the principal and there is nothing to prevent the principal dealing with the property notwithstanding it, and in my judgment the mere giving of a power of attorney to the donee is not such a parting with dominion as is required to constitute a
" … in my judgment by procuring the transfer of the property into her son's name the testatrix did what was necessary in order to part with dominion. Accordingly in my judgment, if this question is a question which has to be decided according to English law, the necessary conditions for a
virtue of the donor's having transferred to him the property in the assets the subject of the gift before her death. The gift was not one on condition precedent, passing the property only in the event of death. Instead it was one on condition subsequent, so that if the donor had recovered she could have sought a retransfer to herself if she had wished (cf Staniland v Willott (1850) 3 Mac & G 664). In my judgment, reference to "parting with dominion", as in the locked box cases, was unnecessary for the decision. The fact that the subjects of the gift were choses in action, rather than choses in possession, was therefore rendered irrelevant.
v Woodard [1995] 3 All ER 980, 984, CA (a case concerning an alleged donatio mortis causa of a motor car) Dillon LJ, with whom Nicholls LJ and Sir John Megaw agreed, said:
"It seems to me that the question is perhaps not so much one of dominion as of evidence of intention. If there are several keys to a box and the donor retains one, one would naturally ask 'Why is he retaining it?' and 'Did he intend to make an immediate gift? Did he intend to part with dominion?' Where one is concerned with a motor car, however, and a man who is in hospital suffering from a
v Treasury Solicitor [1951] Ch 298. In that case, the donor had been taken to hospital following an accident. The plaintiffs, the first of whom was her late husband's nephew, and his wife (the second plaintiff), were her best friends. They visited her in hospital on a number of occasions. On one occasion, she asked them to find certain savings deposit passbooks at her home, and keep them safe, as they were to have the money in the accounts in the event of her death. The second plaintiff did as she asked. On further visits she reminded them that the money was for them, and the first plaintiff confirmed that they had the passbooks. The four passbooks with which the litigation was concerned were: one for the Post Office Savings Bank, one for the Trustee Savings Bank, and two others for ordinary joint stock banks. After the donor's death, the Treasury Solicitor obtained letters of administration ad colligenda bona to her estate, and the plaintiffs brought the present claim on the basis of a valid donatio mortis causa of the credit balances in the accounts.
valid gifts were made in contemplation of death, to take effect conditionally on death. But there were three further questions to decide: (1) In view of the fact that only the second plaintiff had been told to and had collected the passbooks, were there sufficient acts of delivery of the subject matter of the gifts to both plaintiffs? (2) Did the donor's subsequent acts amount to the "assertion and exercise of continued dominion" over the subject matter after the acts of gift? And (3) were the documents handed over sufficient "indicia of title" to make a donatio mortis causa of choses in action?
view of the parties to that case, the least important question from my point of view now is the first. The passbooks had been collected by the second plaintiff, but were now held by both. The court held that the pre-existing context and the subsequent interviews made clear that, although the delivery was originally to the second plaintiff alone, the holding by her was for both of them. There was accordingly a sufficient delivery to both plaintiffs. It is a question of fact which does not arise here, where the claimant claims to be the sole donee of the property concerned.
valid donatio mortis causa, the disposition was vitiated on the ground that the donor, though she parted with possession, "did not part with dominion over the subject-matter of the gift". As the court put it (at 304), "For this she must do, or there is no donatio." The defendant (the Treasury Solicitor) had cited the decision in Reddel v Dobree, one of the locked box cases, which referred to the parting with or retaining "dominion" test. The acts relied on by the defendant to show that the donor had not parted with dominion were that, after the acts said to amount to gifts to the plaintiffs, she had asked them to arrange to pay a builder's bill for work done for her out of the savings balances being given to them, and the plaintiffs arranged for this to happen. But the court held that the donor had not retained "dominion" of the credit balances. She had made no antecedent reservation of the right to call upon the plaintiffs to pay sums out at her direction, and her request to them to do so was precatory rather than peremptory. At worst it might amount to a revocation pro tanto of the gifts made.
title" for the choses in action intended to be given. The judge below had held that the debt shown in the Post Office passbook was the subject of a valid donatio mortis causa by virtue of the decision in Re Weston, referred to above, and the defendant had not challenged this. The argument was accordingly about the other three bank balances, that is, one with the Trustee Savings Bank, and two with ordinary joint stock banks. The court held that the law on this point rested on the judgment of Lord Hardwicke LC in Ward v Turner. The court would reject any attempt to make a nuncupative or otherwise informal will. As a result, a donatio mortis causa of a chose in action could take place only if there was a transfer or (in the words of Lord Hardwicke) "something amounting to that".
"As a matter of principle the indicia of
"Byrne J, in In re Weston … and Luxmoore, LJ, in Delgoffe
title and … delivery of the book 'amounted to transfer' of the chose in action" (at 313), such that the claim to a donatio mortis causa succeeded.
title to the shares. Such shares are transferable in the books of the company using a prescribed form of stock transfer: Companies Act 2006, s 770; Stock Transfer Act 1963. It is clear that, when such shares are transferred using due formality by donor to donee, a valid donatio mortis causa can be created: see Staniland v Willott (1850) 3 Mac & G 664; Re Craven's Estate [1937] Ch 423.
v Moore (1874) LR 18 Eq 474 Hall V-C relied on dicta of Lord Hardwicke LC in Ward v Turner to hold that railway stock could not be the subject of a donatio mortis causa at all. In Re Weston [1902] 1 Ch 680 Byrne J followed that decision, in relation to shares in a building society. In Re Andrews [1902] 2 Ch 394, Kekewich J took the same view. But what Lord Hardwicke had held in Ward v Turner was that the handing over of receipts for the purchase money of stock was insufficient to constitute a donatio mortis causa, not that stock could never be the subject of a donatio mortis causa. Indeed, he said (at 444)
"But it is said, if this is not allowed, it will be impossible to make a donatio mortis causa of stock or annuities, because in their nature they are not capable of actual delivery. I am of opinion, it cannot without a transfer, or something amounting to that … " (emphasis supplied).
v Headley [1991] Ch 425 (concerning land), which I will discuss later in this judgment. Instead, the real question is whether what is handed over is a sufficient "indicium of title" to satisfy the donatio mortis causa rules in respect of a chose in action. I note that it has been held in both Australia (Dufficy v Mollica [1968] 3 NSWLR 751, CA of NSW, and Public Trustee v Bussell (1993) 30 NSWLR 111, Cohen J)) and in Hong Kong (Cheng Lap Kai v Secretary for Justice [2013] HKCFI 184, Deputy Judge Chu) that company shares can be the subject of a donatio mortis causa, and also that share certificates are a sufficient indicium of title for the purpose. In fact, as I have said, in the present case Mr Al Mahmood did not have share certificates for the investments he had in quoted and unquoted companies. Instead he had an online account with Hargreaves Lansdown, and so held his shares in dematerialised form. The next section deals with this.
visible by way of a computer screen. Regular statements may be printed and sent out to customers, but more often are imply left for customers to print out at home if they wish. Access to these computer accounts is generally by way of security devices such as tokens (eg cards with computer chips imprinted upon them) and passwords which customers are exhorted never to write down or give to other people, although many do.
"The obvious candidate for such in this year would be the password, and any other 'secure information' required to access an account. Could one argue that the donor could make a DMC of such an account by giving the beneficiary these pieces of information? The writer's immediate reaction is that these should not be treated as the indicia of a DMC: it would simply be too open for abuse. The donor might have given the putative beneficiary this information simply in order that the latter could, if necessary, effect a transaction that the former was physically unable to carry out. Such an instinctive reaction needs to be examined. There may be no more scope for abuse in treating the password, etc, as the indicia of
v Woodard [1995] 3 All ER 980, 984, thought that, even if there were several keys to a car the subject of a donatio mortis causa, the question was, with what intention the particular key had been handed over to the donee. Was it to share access, or to give short-term authority to use, or was it to make a gift of the car? In my judgment, the same question can be asked in relation to a password, especially when (as I have observed) we are constantly exhorted not to share them with others.
title to give instructions to the bank or other financial institution, the answer is, by using the token or device and/or password. Even if you go into the bank branch, you will still be asked to identify yourself using a token and password. Paradoxically, nowadays, old-fashioned face recognition seems to be trusted only by computer systems. In Birch v Treasury Solicitor, the court referred (at 308) to the "thing the possession or production of which entitles the possessor to the money or property purported to be given". By virtue of the contract between the customer and the bank or other financial institution, that is exactly what the device/login and password constitute. I referred above (at [83]) to the statement of Jackson LJ in King v Dubry, decided after Dr Roberts' article was published, that
"59. … From a review of the cases I conclude that 'dominion' means physical possession of (a) the subject matter or (b) some means of accessing the subject matter (such as the key to a box) or (c) documents evidencing entitlement to possession of the subject matter."
Just like a key, the device/login and password are a "means of accessing the subject matter" of the gift, and so for this purpose amount to "dominion".
Interests in land
vivos of such bundles of rights all in land are more onerous than in relation to choses in action, and. where legal rights are concerned, generally include a deed, as well as registration at HM Land Registry. But not all the existing estates, interests and charges in land are registered at present. Many are not. Some of them, currently unregistered, will however become registrable the next time they are dealt with. These unregistered-but-registrable bundles will generally have been in the same ownership since before compulsory registration was introduced for the area concerned. (Since December 1990 the compulsory registration area has covered the whole of England and Wales.) Frequently such bundles of rights belong to ecclesiastical corporations and charitable foundations, or they are ungranted lands of the Royal demesne, and it may be that many of them will not be dealt with in the foreseeable future, and will therefore continue unregistered.
v Elwes (1827) 1 Bli NS 497 was a case concerning a successful donatio mortis causa of a debt secured by a legal mortgage of land, where the donor had delivered the mortgage deed to the donee. So it combined a chose in action (debt) with a security interest in land (mortgage). At that date, such a mortgage would have been constituted by conveying the fee simple estate itself to the mortgagee, albeit conditionally. In the House of Lords, reversing the decision below, the Earl of Eldon referred (at 541) to the decision of Lord Mansfield CJ in Martin v Mowlin (1760) 2 Burr. 979, where a testator by his will gave a debt secured by a mortgage of land in a will which would be effective as regards the bequest of a debt but arguably ineffective for the devise of an estate in land. One question was whether this gift was a bequest of personalty or a devise of realty. Lord Mansfield had given the judgment of the court, saying (at 978-79):
"A mortgage is a charge upon the land; and whatever would give the money, will carry the estate in the land along with it, to every purpose. The estate in the land is the same thing as the money due upon it. It will be liable to debts: it will go to executors; it will pass by a will not made and executed with the solemnities required by the Statute of Frauds. The assignment of the debt or forgiving it, will draw the land after it, as a consequence: nay, it would do it, though the debt were forgiven only by parol, for the right to the land would follow notwithstanding the Statute of Frauds."
"I ought to do it in a spirit of great humility, when I question the doctrine of Lord Mansfield. If he meant by that to say that such acts done with the money will have the effect in a Court of Equity of enabling you to call for a conveyance of land, I am ready to agree with him, but to say that the land is to be considered as passing under such circumstances, is that to which I cannot agree; but still I maintain that the doctrine from first to last is correct, provided you lay the foundation in the intent of the gift, that the debt is well given or well forgiven; and then as the result of that interest so given, you say that the party who has the land becomes in equity a trustee for the person entitled to the money and to the personal estate."
views is that (if Lord Eldon's alternative view was correct) Lord Mansfield thought that when the debt was transferred by the will the mortgage of land securing it was also transferred (at law). Lord Eldon however said that the security estate in the land could not thereby be transferred at law, but in equity the donee of the debt had the right to call for a conveyance of the security interest too. Lord Eldon concluded (at 543)
"Then the question is, whether, regard being had to what is the nature of a mortgage, contra distinguishing it from an estate in land, those circumstances do not as effectually give the property in the debt as if the debt was secured by a bond only?
The opinion which I have formed is, that this is a good donatio mortis causâ, raising by operation of law a trust; a trust which being raised by operation of law, is not within the statute of frauds, but a trust which a Court of Equity will execute; and therefore, in my humble judgment, this declaration must be altered by stating that this lady, the daughter, is entitled to the benefit of these securities … "
title could not pass by delivery of the deeds was picked up in other cases subsequently, such as by Cotton LJ in Re Dillon (1890) 44 Ch D 76, 82, the case of a donatio mortis causa of a banker's deposit note. Its significance was extensively considered in the much more recent decision of the Court of Appeal in Sen v Headley, to which I now turn.
v Headley [1991] Ch 425 was not about a mortgage at all, but instead about an attempted donatio mortis causa of the fee simple estate in unregistered land. It is necessary to examine this case closely. I begin with the facts. During a stay in hospital, suffering from pancreatic cancer, the owner of a house asked his close friend (and former partner), who still had a set of keys to the house which he owned and they had shared for some years, to fetch a bunch of keys from the house and bring them to him. She did so. On a later occasion, during his final illness in a different hospital, she asked what she should do about the house in case anything should happen to him. He told her that the house was hers, and that she had the keys in her bag which would give access to the title deeds in a locked steel box at his house. She asked about the contents of the house, and the donor told her it was for her to do as she liked, for it was all hers. He died three days later, intestate.
v Elwes as follows (at 435 G-H):
"Accepting that money secured by a bond was capable of passing by way of a donatio mortis causa, he explained equity's insistence that the donor's executors should permit their names to be used by the donee in order to recover the money at law as a consequence of a trust to perfect the gift which arose by operation of law on the death of the donor. In reliance on Richards
"Lord Eldon's emphasis of the distinction between the absolute estate of the mortgagor and the conditional estate of the mortgagee necessarily presupposed an opinion, in which the arguments of counsel for Mrs. Duffield had throughout concurred, that the absolute estate could not have passed by delivery of the
So the court was reasoning that, just as choses in action did not pass at law by delivering title documents, but could be the subject of a donatio mortis causa converting the donor into a trustee for the donee, so too interests in land which did not pass at law by the delivery of title deeds might still be capable of passing in equity, thereby raising a trust by operation of law for the donee. (As I have said, this was also the reasoning of Cotton LJ in Re Dillon (1890) 44 Ch D 76, 82, in a case dealing with a banker's deposit note.)
v Treasury Solicitor. It examined the notion of parting with dominion, which it observed was derived from the "locked box" cases, but in Birch had been applied to a chose in action. Nourse LJ observed (at 437 H – 438A:
"In Birch
v Headley had already decided (at 437 C-D) that "title deeds are the essential indicia of title to unregistered land", and that there had been a constructive delivery of the title deeds to the donor's house by the donor to the donee. The donor had parted with dominion over the house by parting with dominion over the essential indicia of title, namely, the title deeds. The argument that the donor had not yet parted with dominion over the house because he could for example declare a trust for a third party or enter into a binding contract to sell the land proved too much, because the same would be true in the case of a chose in action.
title. If the donor before dying declared a trust over or sold the property that would presumably amount to an implied revocation (cf Birch v Treasury Solicitor [1951] 1 Ch 298, 305-06). What this suggests is that the concept of "parting with dominion" does not refer to removing the donor's continued ability to deal with the legal rights to the asset, or indeed to revoke the gift (how could it, if the gift is revocable until death?), but instead to the physical control, whether of the thing if a chattel, or the indicia of title for choses in action or indeed land, that the donor gives up to the donee, which endures unless and until the gift is revoked.
v Headley went on to discuss the general question whether land was capable of passing by way of a donatio mortis causa. It pointed out that the notion of a trust for the donee arising on the donor's death had been inherent in the decision in Snellgrove v Baily (in relation to a chose in action). But, since the property concerned in that case was not land, such a trust could be created by parol. The innovation of Lord Eldon in Duffield, where land was concerned, albeit as security, was to designate the trust as one arising by operation of law. This enabled the case to escape the requirements of the Statute of Frauds in relation to a trust of land (now contained in the Law of Property Act 1925, s 53(1)(b)). The court discussed the developments in the modern doctrine of the constructive trust, including proprietary estoppel and the common intention constructive trust. The constructive trust could be said to have been "a ready means of developing our property law in modern times, and that the process is a developing one".
"Let it be agreed that the doctrine [of donatio mortis causa] is anomalous. Anomalies do not justify anomalous exceptions. If due account is taken of the present state of the law in regard to mortgages and choses in action, it is apparent that to make a distinction in the case of land would be to make just such an exception. A donatio mortis causa of land is neither more nor less anomalous than any other. Every such gift is a circumvention of the Wills Act 1837. Why should the additional statutory formalities for the creation and transmission of interests in land be regarded as some larger obstacle? The only step which has to be taken is to extend the application of the implied or constructive trust arising on the donor's death from the conditional to the absolute estate."
v Treasury Solicitor) had actually extended the doctrine, and that, while certainty of precedent was desirable, it mattered less in an area as infrequently invoked as that of donatio mortis causa. Although the policy of the law in relation to formalities for the creation and transmission of interests in land should be upheld, that policy had been substantially modified by the developments in the law relating to constructive trusts. As a result, the court held "that land is capable of passing by way of a donatio mortis causa" and that the requirements had been met in that case. The appeal was accordingly allowed.
Vallee v Birchwood [2014] Ch 271, even though it has now been overruled, for it provides the context for the more important case following, namely, King v Dubrey [2016] Ch 221. This was a decision of Jonathan Gaunt QC as a deputy judge of the High Court, dismissing an appeal from the decision of the county court holding that a gift amounted to a valid donatio mortis causa. A daughter who lived in France visited her father, who was originally from the Ukraine, in England in August 2003. He was in generally poor health, although not suffering from any terminal disease. She told him she would visit again at Christmas. He said he might not be alive by then, and gave the title deeds and a set of the keys to his house to her, saying that he wanted her to have the house when he died. In fact, he died in early December, intestate.
title deeds amounted to a valid donatio mortis causa of the house.
v Headley. The (unsuccessful) appellant had three criticisms of the judgment below:
"23. … (1) in finding that dominion in the property had passed to the claimant; (2) in failing to consider whether the facts of this case brought it within the rationale and proper application of the law in relation to donatio mortis causa; and (3) in finding that the alleged gift was made in contemplation of impending death."
v Dubrey [2016] Ch 221, to which I have already referred. In that case the deceased had made a will in 1998 leaving most of her estate, including her house, to charity. In 2007 her nephew came to live with her as her carer. In 2010 and 2011 the deceased signed documents purporting to leave all her property to the nephew, but they did not comply with the formalities for valid wills. More than four months before her death, when she was frail but in reasonable health, she gave the title deeds of her house to her nephew, saying "this will be yours when I go". After she died, the nephew claimed against the executors of her 1998 will that there was a valid donatio mortis causa of the house. At first instance the claim succeeded, but the Court of Appeal reversed this decision. The deceased at the time of handing over the title deeds, and thus "parting with dominion" of the house, did not then "contemplate her impending death".
"50. Let me now stand back and summarise the legal principles which emerge from the case law. I have enumerated all the authorities which counsel have cited. I have also taken into account the numerous other authorities which are discussed in those judgments. It is clear that there are three requirements to constitute a
51. As many judges have observed, the doctrine of DMC in the context of English law is an anomaly. It enables D to transfer property on his death without complying with any of the formalities of section 9 of the Wills Act or section 52 of the Law of Property Act. Thus the doctrine paves the way for all of the abuses which those statutes are intended to prevent.
[ … ]
54. In my
"62 … points out that the claimant was a man with a criminal record for dishonesty. She points to evidence (not mentioned by the judge) suggesting that the claimant had forged a letter to buttress his case. She relies on other instances of dishonesty by the claimant as mentioned in the judgment. … She therefore argues that the judge ought not to have accepted the claimant's evidence concerning the crucial events in the months before the deceased died.
63 I see the force of these arguments. Indeed the judge acknowledged the strength of the attacks on the claimant's credibility … Yet still he accepted that evidence.
64 The authorities stress the need to subject R's [the recipient's] evidence to close scrutiny in cases such as this. … It is easy for unscrupulous treasure hunters to adjust their recollections in order to gain huge rewards. …
65 I am bound to confess some doubt as to whether the judge subjected the claimant's evidence to the requisite degree of scrutiny. … In the end I have come to the conclusion that it is not necessary to decide this issue. For reasons that will become apparent, no party will be prejudiced if I proceed on the assumption that the judge's findings of fact are unassailable.".
v Headley, by handing over the title deeds, she had succeeded in "delivering dominion over the property" to her nephew. Nevertheless, it is clear that the Lord Justice regarded the facts found as perhaps less robust than usual.
v Dubrey was bound by the decision in Sen v Headley, as indeed am I, and the law is not differently expressed by Jackson LJ from that decision, except for the emphasis on "delivering dominion". The references to not extending the law any further make sense in the context of the earlier decisions in Vallee v Birchwood and in the court below, which had sought to relax the existing requirements for the donor (1) to be in contemplation of impending death, and (2) to be giving assets immediately but conditionally.
Conclusions on donatio mortis causa
(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, in which case it passes immediately (subject to formalities) but is divested if the donor ceases to contemplate impending death (eg by recovery from an illness, or escape from a dangerous situation). 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) 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, though somewhat elusive, requirement that the donor part with "dominion" over the property to be given. In such cases it will be satisfied by handing over possession of documents of title (but there may be other ways of doing so). Whatever the concept means, however, it does not mean 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 mortis causa includes chattels, choses in action and interests in land.
(6) Capacity to make a donatio mortis causa is the same as for an inter vivos gift.
(7) The donee of a donatio mortis causa takes against the estate and not under it, although property the subject of a valid donatio mortis causa is nonetheless liable to the debts of the administration of the estate.
The problem of registered land
v Bailey [2021] EWHC 445 (Ch), because the claim failed for other reasons. I was shown two articles from learned journals on the subject. The first was a note in the Law Quarterly Review for January 1993 (volume 109, at 19), by HHJ Paul Baker QC, who was editor of the Review from 1971 to 1987. This note was one commenting on the decision in Sen v Headley, and was not specifically about registered land. The author pointed out that Nourse LJ, in reaching his conclusion, had relied on the existence of constructive trusts at the time of Duffield v Elwes, and their development since then. He then commented (at 21):
"There is, it must be said, an obvious distinction between those cases of constructive trusts and this new development. In those cases the claimant had acted in some way to his detriment so that it would be inequitable for the legal owner to rely on the absence of proper formalities. In donatio mortis causa there is no payment or other detriment on the part of the donee."
"That leaves the interesting question whether registered land can be transferred in the same way. The Land Certificate is not the indicia of
This comment is perhaps more Delphic than one would like, but then the author was at the time a serving judge, and was bound to exercise caution in an extra- judicial comment. For myself, I see the author as having taken a rather catholic view of the matter, that is, that in principle both unregistered and registered land were covered by the decision, although in the case of the latter there was the important question of what document or documents may serve as the indicium of title.
title plan). Neither the land certificate (if one exists) or any official copy of the register need be produced on any application to register dealings with the lands. The title is the register, and that is that.
"Although perhaps only 10% of
The question arises of whether the courts can or should give any recognition to an attempted DMC of registered land where the donor still has a Land Certificate in his or her possession, and gives it to a beneficiary with the appropriate intentions. Since the LRA 2002, this document does not have to be surrendered to the Land Registry on any dealing with the land, so it would seem wrong still to treat it as an indicium of
"It would seem inevitable that the law relating to DMCs of land will be left in an anomalous position. On the basis of established principles, it seems impossible to permit a DMC of registered land; if that is so, then the argument in Sen
view of what are now the "established principles". In my judgment, the decision in Sen v Headley makes clear that the donatio mortis causa is a well-established institution in English law, applying in principle to all types of property, but subject to compliance with the rules summarised above. It was submitted by the defendants before me that (1) Sen v Headley extended the law of donatio mortis causa to unregistered land, but that (2) there could be no donatio mortis causa of registered land, and that (3) the court should not extend the concept of the donatio mortis causa to cover it. I reject that submission. The argument in Sen v Headley was about land, not about unregistered land. The objection was made that there could be no donatio mortis causa of land on principle, and the Court of Appeal rejected it. As that court said, in a passage already quoted above (at [112]),
"A donatio mortis causa of land is neither more nor less anomalous than any other. Every such gift is a circumvention of the Wills Act 1837."
Titles (the land register in Singapore), that can constitute a valid donatio mortis causa: Koh Cheong Heng v Ho Yee Fong [2011] 3 SLR 125. That is the registered land equivalent, for company shares, of Staniland v Willott and Re Craven's Estate. Here, the question is what happens short of that. Two developments of the law, in particular, are relevant to this question. The first is the early imposition in the cases of a constructive trust to deal with, first, choses in action, and, second, land, where the donor did not comply with the relevant formalities for the transfer of the gift at law to the donee. The second follows from the first, and is the recognition (as by the Court of Appeal in Woodard) that the function of the handing over of some document or thing to the donee is evidential rather than transitive.
APPLICATION OF LAW TO FACTS
Inter vivos gifts
vivos gifts of clothing and jewellery to the claimant's wife. Mr Al Mahmood made inter vivos gifts of money to the claimant, including the sale price for his wife's car after her death,. I see nothing to impugn the validity of any of those. After the death of Mrs Al Mahmood, Mr Al Mahmood offered his wife's personal effects (now his property in law) to the claimant's wife. To the extent that she took any of these, they became hers by gift.
Instructions for a will
very shortly before his own death, Mr Al Mahmood's intention was to make a new will in favour of the claimant, whereby the claimant would inherit all the testator's UK situated property, the defendants receiving nothing. He gave instructions for this purpose to Mr Amponsah, the will-writer at the meeting on 15 October 2020. On the same day Mr Al Mahmood asked the claimant to bring down the bags of documents from his office upstairs, and took the claimant through the documents contained in them. However, at that stage he was not attempting to make a gift of anything to the claimant. Instead, he intended to make a will which would have that effect. He was simply instructing the claimant as to what he would receive under the new will.
Donatio mortis causa
Furniture and other contents
v Turner (1752) 2 Ves Sen 431, 438. In my judgment therefore, however much Mr Al Mahmood intended to give the contents, those contents are not the subject of a valid donatio mortis causa.
The land certificate and the leases
v Headley, and at least until the coming into force of the Land Registration Act 2002, it would have been possible for Mr Al Mahmood to make a donatio mortis causa of registered land using the land certificate, if only because production of this in the registry was ordinarily required for any dealing with the registered land. Although the register itself (in the custody of the registrar) was the title, the land certificate (in the possession of Mr Al Mahmood) was properly to be regarded as an indicium of title, at least for the purposes of making a donatio mortis causa.
title for him after the coming into force of the Land Registration Act 2002. I accept that the title could thereafter have been changed without the production of the certificate, so that it might have become inaccurate. But that might have happened anyway, if the certificate had been mislaid and application had successfully been made for a transaction to be registered without production of the certificate. And, if a would-be donor handed over an out of date land certificate in respect of land of which the donor was by then no longer the proprietor, it would not produce a valid donatio mortis causa anyway. In any event, at the end of the day, and as the Court of Appeal said in the Woodard case, the question is really one of evidence: with what intention was the document handed over? In my judgment, Mr Al Mahmood meant to give the house to the claimant.
validity of the gift. In this respect, as I have also said, there is no difference between unregistered and registered land.
titles to them. If the leases had been unregistered land, handing over the leases themselves would have been the obvious way to implement a donatio mortis causa. I can see no good reason why, merely because the leases are registered, they should not be indicia of title, and have a similar evidential value. In my judgment, they are, and do. Mr Al Mahmood meant to give the leases of the flats to the claimant, and for the purposes of the doctrine of donatio mortis causa, that is a sufficient delivery.
Bank and other accounts
title in the computer age. I also repeat what I said about the Woodard case. I do not accept that, just because one person could make known to another the login details and password for access to an online account for the limited purpose of (say) effecting a single transaction at the direction of the account holder, that means that taking such a step could not, in a case where it was intended to do so, amount to providing an indicium of title to the entire contents of the account. A person with a locked deposit box might confide the single key to another person either for the former purpose, or for the latter. Woodard makes clear that it does not matter how many keys there are. The question is one of evidence of intention. In the present case, I am entirely satisfied as to Mr Al Mahmood's intention in doing what he did. He wanted the claimant to have the contents of the accounts.
view, this is parting with dominion. This includes the account with Hargreaves Lansdown.
CONCLUSIONS
(1) Was Mr Al Mahmood attempting to make a nuncupative will or a gift of his assets? On 20 October 2020 he was attempting to make a gift rather than a nuncupative will: see [153] above.
(2) If a gift, was it made in contemplation of his impending death? Yes; see [154] above.
(3) If a gift, was it made conditionally on his death? Yes; see [154] above.
(4) If a gift, did Mr Al Mahmood deliver and "part with dominion" of the subject matter or some equivalent? Yes, except for the furniture and contents of the house; see [154]-[162] above.
(5) Was there any legal bar to the subject matter being subject to a donatio mortis causa? No; see [148]-[149] above.
(6) Did Mr Al Mahmood have capacity to make the gift? Yes; see [154] above.