Why put your last wishes in writing?

Many people know that a Will has to be in writing and signed by the testator in the presence of two witnesses to be valid. But did you know there is a way of gifting property on death without even committing wishes to writing?

It can be done by the obscure legal doctrine of ‘Donationes Mortis Causa’ (‘DMC’) which translates as ‘gift in contemplation of death’.  It is a relic of Roman law, with one Judge commenting, “the doctrine obviously served a useful purpose in social conditions prevailing under the Roman Empire, but it serves little useful purpose today”.  That said, Mr Masudur Rahman, who recently relied on the doctrine to receive the £3.15 million estate of a Mr Al Mahmood, may disagree.

DMC is a gift made by a living person (a donor) in contemplation of their impending death, subject to the condition that they do indeed pass away in the near future. A period of four months between gift and death is too long, and if death ceases to be ‘impending’ (e.g. the donor recovers) the gift is revoked.

The donor must take sufficient steps to deliver the gift to the donee, (e.g. physically giving it or giving a key to something containing it). In the case of land, shares and bank accounts – which cannot be physically given – the donor must part with their ‘dominion’ over it – i.e. the means by which it is accessed (e.g passwords).

Honouring a verbal legacy

Mr Rahman was a distant relative of Mr and Mrs Al Mahmood, who had no children. They made Wills in 2015 leaving their property to the survivor of them, and then to nephews/nieces who they rarely saw.  Over time, Mr Rahman became close with the Al Mahmoods and they came to rely on him as they aged and suffered poor health. Sadly, on 6 October 2020, Mrs Al Mahmood unexpectantly died.

When well wishers called upon Mr Al Mahmood to pay their condolences, he told them that Mr Rahman was, figuratively speaking, his son and that his UK property was ‘all for Masud.’  He frequently referred to his own death, believing that he only had a short time to live and he wanted to put his affairs in order.

Within days, Mr Al Mahmood instructed a Will writer to make a new Will leaving all his property to Mr Rahman. On the same day, he asked Mr Rahman to bring him two bags situated in his office containing documents relating to his three properties, bank/building society accounts and his share account with Hargreaves Lansdown. He said that he would die soon and was giving all the assets to Mr Rahman.

By 20 October 2020, Mr Al Mahmood was agitated that he had not heard from the Will writer. He asked Mr Rahman to bring the bags to him again. This time, he explained all the login details for the accounts and handed Mr Rahman bank cards, pin readers and other security information. He also gave Mr Rahman the land certificate and leases for the three properties – telling him that ‘everything was his’.

Three days later, Mr Al Mahmood sadly died. He had still not executed his new Will, but as it turned out that did not matter because the court found he had gifted all of his property, except the contents of his three properties, to Mr Rahman on 20 October 2020 by the DMC doctrine.

Why a Will is always best

Whilst it was good news that Mr Al Mahmood’s last wishes were followed because Mr Rahman’s lawyers were familiar with the DMC doctrine and able to produce evidence to the court which discharged the burden of proof it is far better to make a valid Will. The courts do treat DMC claims with strictest scrutiny because of the potential for them to be fabricated. At Brachers, we recommend that you make a valid Will and review it every few years to ensure it still reflects your wishes.

This article was first published in the June 2024 edition of South East Farmer.

This content is correct at time of publication