A man who was not able to execute a valid will during lockdown was still legally able to leave almost all of his £2.8m estate to a friend by using a doctrine of Roman law, a High Court judge has ruled.

Al-Hasib Al Mahmood died on 23 October 2020, just two weeks after his wife died from pneumonia, a court heard. The 82-year-old was living with a friend named Masudur Rahman, whom he and his wife had met in 2011 and had come to rely on for assistance as they became older.

Al Mahmood had made a previous will in 2015 which stated that his estate would go to his late wife’s brother and three nieces.

The court heard that during lockdown Al Mahmood had tried to secure witnesses for a new will with Rahman as beneficiary. He appeared to have been unaware of the temporary alteration to the law allowing the witnessing of wills by videoconferencing, the High Court heard.

Instead, Al Mahmood sent a text to a will draftsman which read: ‘I agreed that Masudur 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.’

Rahman alleged that on 15 October and 23 October 2020, Al Mahmood had given all of his assets in the UK – including chattels, bank accounts and registered land – to him. It was said the assets were bequeathed through a donationes mortis causa, or ‘gifts in contemplation of death’, a Roman law doctrine.

His Honour Judge Paul Matthews, explaining the legal area, said: ‘A donatio mortis causa is a gift made by a living person in contemplation of impending death, subject to the condition that the donor dies.’

Al Mahmood had given Rahman all the security devices, logins and passwords that were needed for accessing his bank and similar financial accounts and handed over the land certificate for his London house and all the documents relating to flats in Sutton, the court heard.

The judge added: ‘He was ill, believed he was dying, and had given instructions to a professional will-writer for a new will. Unfortunately, this was during the Covid pandemic, and he became agitated because he had not received the new will. Understandably, he wanted to ensure that his donative intentions were effective. So he resorted to a gift to take effect on death. 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.’

Rahman’s claim succeeded, except for in relation to the furniture and other contents of the house and the flats.

Law Gazzette

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