A “deathbed will” is a will that is created and executed when the person creating it (the testator) is already facing imminent death. Such wills may often be created in a rushed and hasty manner, especially where the testator’s health has reached a very poor condition. However, if they meet all the requirements for a valid will (such as being signed, witnessed, etc.), then deathbed wills can still be considered legally enforceable.
On the other hand, wills that are created in a rushed manner in such situations can sometimes contain many different errors or oversights. For instance, the testator may fail to mention key persons who might play important roles in the distribution/reception of the estate property.
Therefore, when a person creating a deathbed will, it is generally advisable that a wills and estates lawyer be present. While it might sound ridiculous to call a lawyer to a person’s side at their death, they can help mediate the person’s intentions regarding the distribution of their property, which can in turn prevent will disputes or conflicts in the future.
What are Some Other Concerns Regarding Deathbed Wills?
There are several concerns and legal issues associated with deathbed wills. These are often related to the circumstances under which the will is created. These concerns may include:
- Undue influence: Undue influence occurs when a person uses pressure or coercion to force the testator to make a will in a way that benefits them. It can sometimes happen that distant relatives or other persons may approach the testator and attempt to influence them to create a will in their favor (for instance, if the will grants them a certain specific property item).
- Mental Competency: The testator’s ability to formulate and create sound legal decisions may sometimes be compromised. This is especially true if they are under medication, mentally incompetent, or are seriously ill.
- Fraud: A common form of fraud in relation to wills is for a non-relative to visit a nursing home or care home and attempt to have the testator sign a fraudulent will or trust document. Such fraud schemes or scams usually also involve some form of undue influence.
Thus, people should exercise caution when dealing with wills in an emergency situation. The will document should be carefully reviewed and executed properly, according to local and state rules. This is another reason why it’s a good idea to create a will early on in life, before such circumstances occur.
Can a Deathbed Will be Challenged?
Like other types of wills, deathbed wills can be challenged. For instance, if any of the factors listed above (such as fraud, mental competency, or undue influence) are found to be present, then the will could be challenged in court.
This may require that other documents and evidence be submitted to the court in support of the will challenge. For instance, eyewitness testimony can be entered in as evidence, especially where a person witnessed an issue like undue influence or signs that the individual was not in their right mind (lacked mental capacity).
In most cases, the advice and guidance of an attorney is needed to challenge a deathbed will. This is because the laws governing wills and trusts can be very different from state to state, especially with regard to deathbed wills. Also, each will is unique, since each person has different property and assets that they own. Therefore, challenging a will may be different on a case-by-case basis.
What are Some Common Deathbed Will Legal Issues?
Many other legal issues and disputes may be connected with a deathbed will. These can include:
- Conflicts regarding the way property is to be distributed among the beneficiaries;
- Conflicts with regard to the selection or appointment of the will executor (the person designated to be in charge of the estate after the testator’s death);
- Disputes or questions regarding a specific property item (for instance, disputes over who gets to receive a particularly rare or valuable property item);
- Disputes over the legality or validity of the will; and
- Various other disputes.
The biggest dispute will be the question of mental capacity. Typically, those creating a will on their deathbed may be panicked or may be on a large amount of pain medication. Ultimately, the testator’s mental capacity would not be exactly as if they were in good health.
So the red flags would be if they put things in their will that they would otherwise not put in. For example, if they have a precious collection of rare books that they often spoke of donating to a university or library, but then at their deathbed they dictated that the collection should be destroyed. That can be a good indicator that the testator was not in their right mind.
How Can Will Disputes be Avoided?
As mentioned, will disputes, especially those that are unique to deathbed wills, can largely be prevented by creating a will earlier on in one’s life. If a will is created before a person becomes ill or incapacitated, then it will be much better for all the parties involved. This gives the testator a chance to review the will, and if necessary, modify the will over time as their needs and desires change.
For instance, the testator may need to make an adjustment with regard to which beneficiary receives a certain property item. Or, they may need to change their list of beneficiaries altogether. Creating a will earlier can help make room for these types of changes.
Lastly, having a lawyer help create, draft, and review a will document (even a deathbed will) can be extremely helpful. Especially in the case of a deathbed will, where the testator is not fully lucid at all times. The attorney can let the testator, and their family members/loved ones, know if the testator is not well enough to devise a will and what steps can be taken instead.
Should I Hire a Lawyer for Help with a Deathbed Will?
If you or a loved one need to draft, edit, review, or remake any type of will document, it’s in your best interest to work closely with an experienced wills attorney. Your lawyer can help review the will for accuracy, and can also explain how the specific laws in your state or area might affect your will. Also, in the event of a will dispute, your will lawyer can represent you in court in order to clarify the distribution of property.