What is a deathbed Will?
Where an individual’s health has declined considerably and they believe they are close to death, they may draw up their Will hastily. A Will created in these circumstances is known as a deathbed Will.
Validity of deathbed Wills
Whether a deathbed Will is regarded as being valid depends largely on the specific circumstances in which it was made. 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?
If the terms of a deathbed Will differ considerably from those of a previous Will, it is understandable that this might cause some people to call the validity of the new deathbed Will into question/
If an individual has never made a Will before, individuals who would have benefited from the estate under the rules of intestacy but who, as a result of the deathbed Will, are no longer set to receive anything may raise questions as to its validity.
Avoid the uncertainty of deathbed Wills
The uncertainty created by deathbed Wills, and the implications of that for all involved highlight the importance of creating a Will well in advance. There may be situations in which this is not possible and a deathbed Will is the only viable option but it is far better to take steps to ensure 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 once you die, and to ensure your Will has been validly executed.
'Donatio mortis causa' – deathbed gifts
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. It must be:
made by the individual in contemplation of their death, and not necessarily in expectation of it
made with the understanding that it will only pass to the beneficiary on the death of the individual making it
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.