Davina Haydon, a partner in our specialist Inheritance and Trust Disputes team, explores how this question was resolved in a recent High Court probate case.
The recent case of Rahman v Hussain (30 May 2024) has put a fascinating spotlight on the circumstances where you may be able to put an effective Will in place by text message. This is an unusual case involving a legal principle which goes back to Ancient Rome known as ‘donatio mortis causa' which translates as ‘deathbed gifts'.
Facts of the Case
The deceased who sent the text messages was Mr Al Mahmood. He and his wife first met the claimant, Mr Rahman, in 2011 when he was a distant relative of Mr Al Mahmood's who had come to study in London from Bangladesh. Over the years they became close and Mr Rahman and his wife and children were ultimately treated as close family and invited to move in and live with Mr and Mrs Al Mahmood in their house in Mitcham, south London.
Mr and Mrs Al Mahmood owned their freehold house jointly and had various investments including two leasehold flats in Sutton, a managed share portfolio and savings accounts.
Mr and Mrs Al Mahmood made Wills in 2015 in which they left their estates to each other but, if one predeceased the other, their Wills provided for some of Mrs Al Mahmood's relatives to inherit as equal beneficiaries.
Sadly, during the Covid year of 2020, Mrs Al Mahmood died before her husband. This was unexpected as she was 7 years younger than him. She died in hospital on 6 October 2020 aged 75. Mr Al Mahmood was distraught and, being unwell, began to fear he had a short time left himself and wanted to put his affairs in order. With Mr Rahman's help, he saw a professional Will-writer at home on 15 October 2020 and instructed him to prepare a new Will making Mr Rahman his sole executor and beneficiary. The Will-writer asked about the beneficiaries in the 2015 Will (some of whom lived in America) but Mr Al Mahmood said they were not interested in him and he was not interested in them as they never visited or helped out. The Will-writer left saying he would return with the Will for execution on 22 October but needed to contact Mr Al Mahmood's GP first, in accordance with good practice, to check Mr Al Mahmood's GP considered he had testamentary capacity to make this new Will.
Mr Al Mahmood was still concerned about dying soon so he asked Mr Rahman to bring bags to him from his office and then went through the contents explaining these were documents relating to his properties, bank accounts etc, all of which he was giving to Mr Rahman.
Thereafter, Mr Al Mahmood became increasingly unwell and preoccupied with his death and started asking when his Will would be ready for execution. The Will-writer hadn't managed to speak with the GP and so Mr Al Mahmood asked for the bags to be brought to him again and took out the documents. This time, he gave all the log-in details for the online accounts to Mr Rahman and handed over bank cards, cheque books and log-in devices, pin readers and other security items along with the share-dealing account and an old Land Certificate for the Mitcham property with details on where the spare house keys were and leases and registration details for the flats. He also said to Mr Rahman, “Whatever you see of mine is all for you, and you know nothing, for we all belong to God…It does not matter if Jonathan [the will-writer] comes or not. You know everything, and everything is for you.”
By 22 October, he was not getting any better and sent a text message at 11.13am to the Will-writer saying, ‘Jonathan, I am Al Mahmood. I agree that Masadur Rahman will be the absolute own [sic] of all my assets and the executor of my new and last Will. This is my final word, I revoked all my previous Will done by me and my wife. It's a difficult time for me. Please help Masud.'
On 23 October at 00.42 he sent another text message this time to Sayam Hafez (who gave evidence for the defendants at the eventual trial saying he was suspicious of this text) saying, ‘Sayam, pray for me, Masud is my son. He is the absolute owner of all my assets. This my final word.'
Sadly, Mr Al Mahmood died later that morning.
The UK estate had a value approaching £3million and the wife's relatives and beneficiaries in the 2015 Will contested Mr Rahman's donations mortis causa claim to the properties, shares and savings gifted to him.
However, the judge was satisfied that Mr Al Mahmood believed he was dying and that he was not trying to make an oral Will but was intending to gift everything (except the contents of the properties and properties in Bangladesh) entirely to Mr Rahman in contemplation of his death. The judge was satisfied that Mr Al Mahmood thought he would die soon and that, by handing the contents of the bags including a land certificate and leases to Mr Rahman plus the various accounts' passwords and log-in details, Mr Al Mahmood intended to give Mr Rahman everything that was his, conditional on Mr Al Mahmood's expected imminent death. The judge said Mr Al Mahmood, by these actions, had ‘parted with dominion' over these assets and he was also satisfied that Mr Al Mahmood had capacity to make such gifts.
Conclusion – when is a deathbed text message as good as a Will?
As the judge said, these deathbed gift situations are rare in English law and are not intended to replace written Wills prepared properly in accordance with the Wills Act 1837 (a written Will signed by the executor before two witnesses present at the same time). But donationes mortis causa can still be used in extreme circumstances such as this.
In the particular circumstances of this case, the judge said what else could Mr Al Mahmood have done? He had instructed a professional Will-writer but the Will was not ready for execution. This was during Covid and Mr Al Mahmood knew he was dying. He was agitated and wanted to ensure that his testamentary wishes for Mr Rahman to inherit were effective so he passed the bag of papers and log in details and passwords to him thereby parting with dominion over his assets. He had also texted confirmation of his wishes to others.
So, there was more to this case than a single text message, and it is always advisable to make Wills with professional help. In this case, the remainder of the 2015 Will was still held to be valid although the desperate dying wishes of Mr Al Mahmood were respected by the court.
As the judge said, “The whole point about the doctrine of donatio mortis causa is to provide a legal solution to a human need, when other legal institutions do not.”
However, the case has now been appealed so you will need to watch this space for the final decision of the Courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.