The High Court Chancery Division - Rahman v Hassan and others - Donationes Mortis Causa

This blog began on 14 January 2010. Back in September 2022 I posted that it was coming to an end but, as you can see, it did not! I continued to find the law too interesting to actually stop altogether and so I posted items albeit more occasionally. There is, and always will be, much of interest in our law and legal system and so, energy and time permitting, I hope to continue.  Anyway, enough of that !

A very interesting case has just been decided in the High Court's CHANCERY Division. The Division is the successor to the former Court of Chancery which, along with other courts (e.g. Queen's Bench), became part of the High Court under the reforms of 1873-75. 

At the present time, there are

17 High Court judges assigned to the Division - Judges of the Chancery Division - Courts and Tribunals Judiciary and the senior judge of the Division (currently Sir Julian Flaux) is known as the Chancellor. There are times when other lawyers sit as Deputy High Court judges.

The Chancery Division seems to have received very little attention by most bloggers (myself included) but there is an excellent and well-presented blog by barrister Charlotte John - Equity's Darling (equitysdarling.co.uk). Equity refers to the body of law first developed by the Court of Chancery and the "Darling" was the "Bona fide purchaser of a legal estate for value without notice" (the BFPLEFVWN)! Thankfully, there is no need to look at that mythical creature any further here!

So, what is the interesting case? It is Rahman v Hassan & Ors [2024] EWHC 1290 (Ch) (30 May 2024) (bailii.org). The claimant Masudur Rahman argued that Mr Al Mahmood had, during his lifetime, given him all his considerable UK assets and that the gift was achieved using Donationes Mortis Causa (DMC).  The High Court - (HHJ Paul Matthews - sitting as a Judge of the High Court) - agreed.

Mr Al Mahmood died on 23 October 2020 aged 82. It appears that he had hoped to make a new will but, due to problems arising from the COVID-19 pandemic, he had not done so. Nonetheless, believing his death to be approaching, he had done certain acts intending to transfer assets to Mr Rahman. It was argued that those acts amounted to ""gifts in contemplation of death" - i.e. DMC.

DMC are actually an ancient aspect of the law and can be traced back before medieval times. The court concluded that Rahman's claim succeeded (except in relation to the furniture and other contents of the house and the flats). The DMC had transferred most of Al-Mahmood's property including the registered title to land. Whether registered land could be transferred in this way was left open in the earlier case of  Davy v Bailey [2021] EWHC 445 (Ch).

The judgment of Judge Matthews is well-worth reading by students and practitioners. One rarity to be found is the explanation (at paragraphs 9 to 16) of how judges go about deciding cases. The judge then considered the witnesses. After that he set out the facts as he found them and stated the issues to be decided, Next comes an exposition of the law and how the judge applied it to the facts. Finally, the conclusion is stated (paragraphs 163 and 164).

Notes:

It is always advisable for anyone owning assets (e.g. land or other property etc) to make a will (Law and Lawyers: Bona Vacantia ~ Get a will drawn up ! (obiterj.blogspot.com). To be valid, wills have to be "executed" according to certain formalities set out in the Wills Act 1837. The formalities include witnesses to the making of the will - (Wills Act section 9). 

During the Coronavirus pandemic, the law was modified by the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order but that came to an end on 31 January 2024 - see Sun sets on remote witnessing of wills - Equity's Darling (equitysdarling.co.uk).

The judgment is on Bailii at Rahman v Hassan & Ors [2024] EWHC 1290 (Ch) (30 May 2024) (bailii.org)