High Court Validates Donation in Will Dispute

Katie de Swarte

High Court validates gift made during Covid lockdown in Will Dispute

In what may be one of the first covid lockdown-related wills disputes to be litigated in the Courts, it was ruled that a dying man’s gift of assets to a friend was valid – even though his new will had not been executed.

At Osbornes Law, our contested wills and probate team help clients who are concerned about a loved one’s estate after death, whether or not they left a will.

The pandemic problem

When covid-19 was at its peak, and we were confronted with our own mortality, there was a surge in people across the UK deciding to make their wills. However, a key challenge arose in relation to executing the will.

Under the Wills Act 1837, a will must be signed by the testator (the person making the will), in the presence of at least two witnesses who are both present at the same time. Those witnesses must also sign the will in the testator’s presence.

Given the restrictions on face-to-face meetings, the government temporarily relaxed these long-held legal requirements. The rules were amended so that ‘lockdown’ wills could be video-witnessed. Importantly, the temporary rules allowed remote witnessing of wills only as a last resort and in specific circumstances. Unsurprisingly, there were concerns the amendment could cause confusion and will disputes could result.

Masudur Rahman v Dewan Raisul Hassan & Ors [2024] EWHC 1290 (Ch)

In this case, the individual (and apparently his legal adviser) didn’t appear to know about the temporary rule change. Al-Hasib Al Mahmood was 82 and died in October 2020 two weeks after his wife sadly died. He left a £1.4m estate.

He had purportedly given the vast majority of his UK assets to a friend, Masudur Rahman, before his death when a lockdown was in force.

However, under the terms of a short will made in 2015, Mr al Mahmood had left his UK assets to his wife’s brother and her three nieces. The brother was also the executor and went on to obtain probate of the 2015 will.

Mr Rahman sued the estate, claiming that on two separate days in October 2020, Mr Al Mahmood had gifted his UK assets to him in contemplation of his death (in law, this is known as donationes mortis causa). The only living witnesses to the gifts were Mr Rahman and his wife, which made Mr al Mahmood’s family highly suspicious.

In evidence, Mr Rahman said he had known and respected Mr Al Mahmood and his wife for years and they increasingly relied on him as they got older and their health deteriorated. He spent increasing amounts of time with them, including overnight stays – eventually moving in with them. He and his wife were, said Mr Rahman, almost like the children he never had.

A crucial factor supporting Mr Rahman’s claim was the evidence of a will draftsman who Mr al Mahmood had contacted (knowing he was dying). The judge described him as a “particularly impressive” independent, professional witness whose evidence he accepted without hesitation.

Unfortunately, there was a slight delay in arranging for the will to be executed and a couple of days before his death, Mr al Mahmood became agitated – knowing he didn’t have long left. He asked Mr Rahman to fetch bags of documents from his office; explained all the login details for the online accounts and handed over bank cards and other security items to Mr Rahman. He also gave him the registered land certificate for the property telling him it was his.

On the morning of 22 October, the will drafter phoned to say he had been unable as yet to secure any witnesses – it seems he was unaware of the temporary rule allowing remote witnessing of wills.

Knowing his death was imminent, Mr Al Mahmood texted the will drafter to say Mr Rahman was to inherit all his assets; he was to be his executor; and he was revoking his previous will. That evening he sent a separate text to another friend to the effect that Mr Rahman was “my son” and the absolute owner of all his assets. He died that night.

The High Court ruled that the donation was valid.

The High Court ruled that Mr al Mahmood had the capacity to make the gift to Mr Rahman in contemplation of – and conditional on – his impending death. He had personally sent the texts and the gift was valid.

The judge ruled that his intention was to make a new will in Mr Rahman’s favour leaving the family members with nothing. However, the situation then changed and Mr al Mahmood resorted to making a gift that was to take effect on his death.

How Can We Help?

Could there be similar cases to come? It’s likely there will be more disputes in future in relation to wills (or gifts) made against the background of the pandemic.

If you have any concerns relating to a will signed during lockdown or alternatively purported gifts made by an individual before death, it is vital to take specialist advice.

Contact the contested probate solicitors at Osbornes Law by:

• Filling our online contact form below: or
• Calling us at 020 7485 8811