Masudur Rahman v Dewan Raisul Hassan & Ors

The court held that the deceased's acts of 20 October 2020 constituted valid donationes mortis causa in respect of his UK bank and investment accounts (including dematerialised holdings accessible via login devices), and in respect of his registered freehold house and two long leases, but did not effect gifts of the furniture and other tangible contents of the properties. The judge applied the established requirements for a donatio mortis causa: (i) contemplation of impending death, (ii) a gift made to take effect on death (condition precedent), (iii) sufficient implementation by delivery or transfer of indicia of title, and (iv) capacity. In particular, the handing over of logins, tokens and security devices and the land certificate/leases satisfied the requirement to deliver or to part with "dominion"; the court accepted that donationes mortis causa can, in principle, extend to registered land and to modern online accounts. The claimant's alternative application in proprietary estoppel was refused at trial and not pursued further.

The claimant, a relative and long-term carer/companion of the deceased, alleged that the deceased made donationes mortis causa of his UK assets to him in the period immediately before the deceased's death on 23 October 2020. The defendants were the beneficiaries and executors under the deceased's 2015 will. The contested assets included bank and investment accounts (some accessed online), a registered freehold house and two long leases, and the contents of the properties.

(i) Nature of the claim/application: declarations that various acts by the deceased constituted valid donationes mortis causa in favour of the claimant and therefore fell outside the deceased's 2015 will.

(ii) Issues framed by the court:

• Whether the deceased was attempting a nuncupative will or making gifts;
• Whether any gift was made in contemplation of impending death and conditional on death;
• Whether there was the necessary delivery or parting with dominion (including what constitutes sufficient "indicia of title" for choses in action, online accounts and registered land);
• Whether there was any legal bar to donationes mortis causa applying to the subjects claimed (notably registered land and dematerialised securities); and
• Whether the deceased had capacity to make such dispositions.

(iii) Court’s reasoning and outcome: The judge accepted the claimant's evidence in respect of the events of 15 and 20 October 2020 and the contemporaneous text messages. He found that by 20 October the deceased contemplated his impending death, that he handed over documents, login details, tokens and the land certificate/leases to the claimant and that these acts were done with the intention that the claimant should have the assets on the deceased's death. The judge applied the well-established tripartite test for a donatio mortis causa and the authorities on delivery, indicia of title and parting with dominion. He rejected the proposition that registered land or dematerialised online accounts are incapable, in principle, of being the subject of a donatio mortis causa and held that the relevant indicia given to the claimant were sufficient. The only items where the claimant failed were the furniture and other household contents, because there had been no delivery or transfer of possession of those chattels. The judge ordered an account to the claimant for rents of the flats received by the executors and required the claimant to account for what he had done with furniture and contents.

The court emphasised the revocable nature of donationes mortis causa, the standard of proof on the balance of probabilities, and that the law accommodates modern forms of indicia of title (eg tokens, passwords and registrable documents) provided the donor's intention and delivery are established.

The claim succeeded in part. The court declared that the deceased validly made donationes mortis causa in favour of the claimant over his UK bank and investment accounts (including online/dematerialised holdings), and over his registered freehold house and the two leaseholds, because the deceased contemplated impending death, made the gifts conditional on death and delivered sufficient indicia of title (logins, security devices, land certificate and leases), and had capacity. The claim failed in relation to the furniture and other household contents, for which there was no adequate delivery or parting with dominion. Consequential accounts were ordered (rent receipts to claimant; claimant to account for furniture/contents disposition).