20 July 2021

Is it ever too late to make a will?

By Kieran Athow, Solicitor, Hayes + Storr.

Whilst planning ahead and making a will is the best way to arrange the division of your estate, sometimes plans need to be put in place suddenly and at the last minute from a hospital bed, hospice or care home.

Testamentary Capacity

To make a will or amend an existing will, you must have the requisite “testamentary capacity”. This means that you must understand that you are making or amending a will and its effect, understand the extent of your estate and comprehend any claims to which your estate could be subject to following your death.

If there is any doubt as to your capacity, then a medical report may be required prior to the will being executed. For example, whilst a diagnosis of dementia does not necessarily mean that you lack testamentary capacity, it would be advisable to obtain a medical report to confirm the position.

Solicitors are well versed in these issues and will help to ensure that a valid will can be executed in time.

Precautions Against Undue Influence

Any decision to make a will or amend an existing will must be your own. If there is any sign of undue influence from a third party, then steps will need to be taken to protect you. For example, it may be that you have asked a family member or a friend to contact your solicitor on your behalf. If that person is also a beneficiary under the provisions of your Will (or could indirectly benefit from it), then your solicitor must be satisfied that they have not exerted ‘undue’ pressure on you to make or amend your will in particular terms.

Unless your Solicitor is satisfied that your instructions are yours and yours alone, they will be unable to act for you with respect to drafting a new will or amending an existing will.

Finding Witnesses

A will made in any setting, including a care home or hospital, must be signed by you in the presence of two independent witnesses. Given the urgent nature, and the fact that your witnesses must both be present at the time you sign your will) the most practical arrangement is for all three of you to sign at the same time in each other’s company.

Your witnesses must be independent, and they cannot be named within your will as a beneficiary, nor can they be the spouse or civil partner of any of your named beneficiaries.

Finding willing witnesses to a “deathbed will” can be difficult, as many medical professionals may not be willing to witness the wills of those in their care. However, your solicitor can usually bring a colleague with them, and they can both act as your witnesses.

Making a Deathbed Gift

If there is insufficient time to make a will, or if there are relatively small gifts that you want to leave to certain people without the formality of making a will, you may be able to leave them by way of a deathbed gift.

Deathbed gifts have complex rules and so it is always best to seek advice from a solicitor to prevent any problems arising later for your executors.

For further information, please contact Kieran Athow in the Wills and Probate team on 01328 863231 or email kieran.athow@hayes-storr.com.

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.