Sometimes it can be the case that a person takes very ill in the most unexpected of circumstances and at that moment they have the realisation that they should have made a Will quite some time ago that deals with the distribution of their assets. It is an incredibly emotional time when one comes to the realisation that they are dying, and it can be made even more emotional by trying to ensure that your wishes are fulfilled after your death. Deathbed Wills are the hot topic of conversation and the basis of the discussion is whether or not they are valid. For a deathbed Will to be valid the usual rules apply in ensuring the validity of a standard Will, those being: –
- That the testator/testatrix is giving instructions uncoerced;
- That the Will is in writing, signed by the testator/testatrix, in the presence of two independent witnesses (none family members and not named within the Will);
- The beginning of the Will states that it revokes all former Wills drafted for the testator/testatrix; and
- That the testator/testatrix has mental capacity to make the Will and have a full understanding of its effect on their death.
It most certainly is not too late for a person who is sadly dying to make a Will but it is very important that their mental capacity is not affected by their sad diagnosis. It is unfortunate that in some cases, deathbed wills are determined to be invalid after the testator/testatrix has passed away because at the time they were made the person lacked the capacity to make decisions for themselves or understand the legal requirements to proper execution.
Certainly, it is recommended that a solicitor always drafts a deathbed will because more often than not they can be challenged by beneficiaries who may have been either left out of the Will or are not receiving what they had envisaged they would be receiving on the persons death. One of the most common challenges is towards the testator/testatrix lacking mental capacity or being subject to undue influence. In the event that the Will is drafted by a solicitor then the instructions of the testator/testatrix will be carefully noted and any challenge against capacity could be discounted.
It is possible for a person who is terminally ill to decide against writing a new will but instead choosing to gift property or assets when they are still alive. These gifts are termed deathbed gifts. In most cases, they are a gift given verbally which can cause problems once the person has sadly passed. It is possible for a deathbed gift to take precedence over instructions that are left behind in a Will.
However, given that the gifts are made at very emotional, sensitive and testing times, deathbed gifts do have to meet certain requirements to take effect, otherwise they will be challenged. For a deathbed gift to be valid it must satisfy the following conditions: –
- Be made in contemplation of death that is impending;
- Be conditional on death; and
- Be parted with or delivered to the intended recipient