Deathbed Wills: The Importance Of Planning Ahead
Wills and Probate Solicitor, Keith Baldock-Grimes, discusses deathbed Wills and deathbed gifts in his latest blog….
In normal circumstances, a Will is something that you might spend a fair amount of time thinking about. This is understandable – it is, after all, an important document that can have a significant impact on those mentioned in it. Some people have complex estates, others may have many beneficiaries, or family circumstances which require the implementation of trusts.
There are, however, occasions when an individual may believe that the time available is limited. Where an individual is seriously ill and they are close to death, they may be forced to draw up their Will urgently. A Will created in these circumstances is known as a deathbed Will.
Whether such a Will is regarded as valid depends largely on the circumstances in which it was made. The very fact that it is made hastily renders it more vulnerable to challenge. If its validity is disputed, the court will look closely at the particular circumstances in which it was created. For example:
• Was it validly executed?
• Did the person make the will under pressure from someone else?
• Was the person pressurised by anyone to leave them a gift under their Will?
• Did their illness or their medication affect their capacity?
If the terms of a deathbed Will differ considerably from those of a previous Will some people may call the validity of the new deathbed Will into question – particularly if they had been a beneficiary in the previous Will but no longer receive anything under the terms of the new one. If an individual has never made a Will before, which would make the deathbed Will their first and only one, individuals who would have benefited from the estate under the rules of intestacy but who are no longer set to receive anything may raise questions as to its validity.
The uncertainty created by deathbed Wills, and the implications for all involved (in particular, that there may be a greater chance of the Will being disputed) highlight the importance of creating a Will well in advance. Sometimes, however, this is not possible, and a deathbed Will is the only viable option. If an individual has not made a Will and wishes to avoid intestacy there may be no other course of action if they do not have much time left.
It is far better that you draw up your Will while you are healthy and not anticipating death. Doing so allows you to make it at your own pace and on your own terms. It also enables you to take as much time as you need to consider how you would like your estate to be distributed on your death, and to ensure your Will has been validly executed
Deathbed Gifts
Despite the similarity in names, a deathbed gift is something entirely different to a deathbed Will. A deathbed gift is one that only takes effect on the death of the person who made it and must be:
• made by the individual in contemplation of their death, and not necessarily in expectation of it (meaning that the person making the gift doesn’t have to believe that they will die soon);
• made with the understanding that it will only pass to the beneficiary on the death of the individual making it; and
• passed on to the beneficiary in such a way as to be clear that the person making the gift is handing over ownership, as opposed to merely giving up physical possession.
The validity of a deathbed gift will depend on the circumstances in which it was made, and it can be revoked, either because the death doesn’t occur or the donor chooses to do so before their death.
If you want to make things easy for loved ones left behind, then it is really far better to give thought to your Will now so that you have time to give it careful consideration. We can help you by discussing your wishes and giving clear advice about your options, feel free to contact me on 01283 214231 or via email at k.baldock-grimes@timms-law.com.
Keith Baldock-Grimes
May 2023