A will is a legal document created and signed by an individual known as a “testator.” It is created to distribute the person’s property and assets upon death.
A “deathbed will” is a will that is created and executed when the testator is facing closely approaching death. Such wills are sometimes viewed with suspicion because they can be created rushed and hasty when 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.), deathbed wills can still be valid and legally enforceable.
On the other hand, wills created in a rushed manner in such situations can sometimes contain many errors or oversights. For instance, the testator may fail to mention key persons who might play important roles in the distribution of the estate property (e.g., they may forget to mention a particular relative or friend), or their health may make it very hard to focus their attention for the time needed to make a thoughtful will.
Therefore, when a person creates a deathbed will, it is generally advisable that a wills and estates lawyer be present. While it might sound unrealistic to call a lawyer to a person’s side at their deathbed, an attorney can help clarify 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 or improperly persuade the testator to make a gift in the will in a way that benefits them and is a detriment to another. It can sometimes happen that distant relatives or other persons may approach the testator and attempt to influence them to write the will in their favor. As an example, the will may grant them a piece of real estate that others who know the testator believe the testator meant to give to someone else.
- Fraud: A common form of fraud concerning 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.
- Mental Competency: The testator’s ability to formulate and make sound legal decisions may sometimes be compromised. This can happen when the testator has a mental disorder that affects their ability to understand the nature of making a will. This could also happen if they are under the control of medication that impairs clear thinking (such as painkillers) or become mentally incompetent. Signs of mental incompetency include:
- Suffering from an insane delusion
- Experiencing lucid and non-lucid intervals
- Evidence of dementia
- Symptoms or manifestations of Alzheimer’s disease
People should exercise caution when dealing with wills created in an emergency. According to local and state rules, the will document should be carefully reviewed and executed properly. This is another reason why it’s a good idea to create a will early on in life before such circumstances occur or to have an attorney there when the deathbed will is being made.
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 present, the will could be challenged in court.
This may require other documents and evidence to be submitted to the court to support the will challenge. For instance, eyewitness testimony can be entered as evidence, especially when a person witnessed an issue like undue influence or signs that the individual was not in their right mind (lacking mental capacity).
Testimony from outsiders to the will, such as doctors or other medical staff, may be necessary. Medical personnel can be particularly helpful in establishing or dispelling a claim of mental incompetency.
In most cases, the advice and guidance of an attorney are needed to challenge a deathbed will. This is because the laws governing wills and trusts can differ from state to state, especially concerning deathbed wills. Each will, and each will challenge is unique. Therefore, challenging a will may be different on a case-by-case basis.
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 concerning 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, valuable, or sentimental item)
It is often a red flag if the testator includes things in their will that they would otherwise not put in. Perhaps they have a precious collection of rare books that they often spoke of donating to a university or library, but then on their deathbed, they dictate that the collection should be destroyed. That can indicate that the testator was not in their right mind.
How Can Will Disputes Be Avoided?
As mentioned, will disputes, especially those unique to deathbed wills, can often be prevented by creating a will earlier in one’s life. 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 concerning 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.
Equally important, the extra time allows the testator to explain to potential beneficiaries where their property will be directed to go when they die.
Finally, executing a will when they are younger and healthier makes it less possible that their testamentary capacity will be challenged.
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, working closely with an experienced wills attorney is in your best interest.
Your lawyer can help review the will for accuracy and 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 to clarify the property distribution.