Masudur Rahman v Dewan Raisul Hassan & Ors

A donatio mortis causa is a gift made in contemplation of impending death, conditional on the donor’s death and revocable until then. The donor must deliver the subject matter, or a means of accessing or controlling it, and must part with dominion in the legally relevant sense. The doctrine applies in principle to chattels, choses in action, company shares and registered or unregistered land. For online accounts, login details, passwords and security devices may constitute indicia of title where given with donative intent. A constructive trust may perfect the donee’s title where legal formalities have not been completed. The court held that registered land may be the subject of such a gift, but found no valid gift of furniture and other contents where possession had not been delivered.

The claimant sought declarations concerning alleged gifts made by the deceased, Mr Al Mahmood, shortly before his death. The gifts were said to comprise UK bank and investment accounts, a freehold house, two leasehold flats, and household contents. The defendants were the deceased’s executors and beneficiaries under his 2015 will.

The court found that the deceased had first instructed a will-writer to prepare a new will in the claimant’s favour. On 20 October 2020, however, he handed over property documents, account access information and security devices, stating that his assets were the claimant’s. He died three days later. The central issues were whether these acts constituted a gift rather than an informal will, whether the requirements of a donatio mortis causa were satisfied, whether registered land and online accounts could be covered, and whether the deceased had capacity.

1. Disposition. The claim succeeded in relation to the bank and other financial accounts, the freehold house and the two Sutton flats. It failed in relation to the furniture and other contents of the house and flats. Accounts were ordered for rents received by the executors and for the claimant’s dealings with the contents.
2. A donatio mortis causa requires: contemplation of impending death; a gift conditional on the donor’s death and revocable during life; and delivery of dominion over the subject matter. The gift may be subject to a condition precedent, with ownership passing on death, or a condition subsequent, with ownership passing immediately subject to divestment if the donor recovers.
3. The donor must deliver the thing itself, or a means of accessing or controlling it, such as a key or document evidencing title. The delivery need not satisfy the formalities required for an inter vivos transfer. The additional requirement of parting with dominion does not mean parting with ownership, possession or the ability to revoke the gift. It concerns relinquishing physical control of the thing or its essential indicia of title.
4. The doctrine applies in principle to interests in land, including registered land. The absence of a current statutory requirement to produce a land certificate under the Land Registration Act 2002 did not prevent a certificate, leases or official register documents from operating as evidence of donative intention and indicia of title.
5. Login details, passwords and security devices may constitute the modern equivalent of indicia of title for online accounts. The deceased had given the claimant the relevant information and devices and, because of his illness and the number of accounts, had put it out of his power to deal with the accounts in the interval before death. That amounted to parting with dominion.
6. The deceased had capacity. His acts on 20 October 2020 were intended as gifts conditional on death, rather than as a nuncupative will. The furniture and contents were not validly gifted because the claimant and his wife had not acquired possession of them through delivery.