The problems associated with ‘deathbed’ wills

While taking time, careful consideration and expert advice is the preferred way to record a will, sometimes the need to act quickly in order to change or obtain a person’s final wishes arises and this can cause issues for both the family and the solicitor involved.

Partner and private client specialist Paul Davies, says there are many obstacles to overcome when dealing with a ‘deathbed’ will and it is one of the most challenging requests a private client lawyer will get.

He said: “In these situations while the sense of urgency from the client and their family may be high, it does not mean the usual compliance requirements can be dispensed.

“It is important to obtain as much information as possible at the earliest possible time from both the testator and any available family members in order to plan accordingly. Even so, many things can get in the way of completing the task or of establishing a document which is watertight and safe from being contested in court after death.”

In many circumstances the individual sadly dies or becomes too ill to provide instructions at some point during the process, meaning a lot of time and planning can go to waste on the lawyer’s side and from the family’s point of view it can be emotionally trying.

In other circumstances it may become clear that the testator does not have the capacity to make legal decisions and a capacity assessment is required before going any further, however there is unlikely to be the time to do that.

Paul said: “Unless the solicitor feels completely sure that the testator lacks capacity, he may be willing to take instructions and prepare the will anyway, with the issue of capacity to be decided post-death if necessary. This situation is more likely than usual to lead to litigation, which can be hugely emotional and stressful for family members during an already difficult time.

“Bedside wills also unfortunately have a higher probability of including errors due to the time pressures and the lack of access to libraries of precedents and other useful resources. Sometimes though there is not the time to go away and prepare a document remotely, instead requiring a signature from the client immediately. Again, this opens up the process to criticism, allegations of negligence and a greater probability of litigation.

“The only way to get around these obstacles with success is to be aware of them and plan as much as possible for them in advance. Using a professional wills and probate expert is the best way to prevent any final decisions being contested after death and ensure that all processes are adhered to in order to make the document valid.”

Paul Davies has been helping clients with legal and tax issues for 20 years. As well as being a partner at Clarke Willmott he is also a member of STEP (the Society of Trust and Estate). Practitioners.