Making a will on your deathbed
Living through a global pandemic has meant seeing loved ones taken from us at an alarming rate, and it has been distressing for many to see someone taken into hospital and not know if you might be able to see them again.
‘Whilst planning ahead to document your wishes in a will is the best way to arrange the division of your estate, sometimes plans do need to be put in place suddenly and at the last minute from a hospital, hospice or care home,’ says Jessica Pye, an associate in the Wills, Probate and Trusts team with MacDonald Oates LLP in Midhurst. ‘If you are concerned that you may not be well enough to return home and wish to put your affairs in order then a solicitor can help you to make a will.’
At present, it is important to balance the need to protect one another’s physical health with the urgency of making a new will. It is still possible to see your solicitor and obtain legal advice. This can either be via video conferencing software or face-to-face, so long as it is safe to do so and all coronavirus precautions are met.
It is vital for making any will or gift that you have testamentary capacity. This means that you must understand that you are making a will, you must know the extent of your estate, and you must comprehend any claims to which your estate could be subject following your death.
If your mental capacity is in any doubt, a medical report may also be needed. For example, a recent diagnosis of dementia will not necessarily mean that you do not have testamentary capacity, but a medical expert is likely to be needed in order to confirm this.
This may slow things down and complicate the process, but a solicitor will be well versed in these issues and can help to ensure that they do not prevent a valid will from being executed in time.
Precautions against undue influence
Any decision to make or amend a will must be your own. If there is any hint of undue influence, steps will need to be taken to protect you. For example, it may be that you have asked a family member or friend to contact your solicitor for you, if that person is also intended to be a beneficiary your solicitor will need to be satisfied that they have not pushed you to make the will. Unless satisfied that your instructions are yours and yours alone, the solicitor will be unable to draft the will on your behalf.
As with any will, a will which is made in a care setting must be signed by you and by two independent witnesses. Given the urgent nature, and as your witnesses and you must see each other sign the will, the most practical arrangement is for all three of you to sign at the same time, in one another’s company.
Your witnesses must also be independent, meaning that they cannot be named as one of your beneficiaries, nor can they be the spouse or civil partner of any of your named beneficiaries.
Whilst it is a requirement that all wills must be in writing in order to be valid, it is not necessary that they are typed. A handwritten will is often the best option, given that there may be a shortage of time, and our solicitors are best placed to ensure that a handwritten will is effective and appropriate to your circumstances.
Practical considerations for deathbed wills and gifts
Leaving any will until the last minute means that time will be against you. This can bring with it the risk that time may not be sufficient to give effect to your wishes. If you are in a hospital or a care home, visiting restrictions might also prevent things from proceeding swiftly enough.
When making any decision about a will, it is important that these are not made in haste. However, if you are certain about the will you wish to make, professional advice and drafting is vital in preventing your decision from being contested after your death, and our solicitors can help you ensure that you adhere to all relevant rules and make your final wishes validly.
For further information, please contact Jessica Pye in the Wills, Probate and Trusts team on 01730 819190 or email . MacDonald Oates LLP has offices in Midhurst, West Sussex and Petersfield, Hampshire.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.