Deathbed will

What is a deathbed will?

In most cases, a will is something that you might spend a fair amount of time thinking about. It is, after all, an important document – one that can have a significant impact on those mentioned in it. In addition, you might have a rather complex estate (perhaps you own several properties), or there might be many people who you would like to benefit from your estate (as recipients of gifts, as beneficiaries of trusts and so on). For further information on what may be included in your estate, see our page What to include in a will.

However, sometimes an individual might believe that they don’t have that much time left. There are a variety of reasons why this may be the case, the most obvious being serious illness. Where an individual’s health has declined considerably, and they are close to death, they may consequently 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?

For more information on how a will should be executed, see our page Signing a will - getting it right.

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 – particularly if they had been a beneficiary in the previous will but no longer receive anything under the terms of the new one.

Alternatively, it may be that an individual has never made a will before - which would make the deathbed will their first (and only) one. In this sort of situation, 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.

For more information on what your family can expect to receive from your estate, see our page Can you disinherit family and dependants?

Avoid the uncertainty of deathbed wills

The uncertainty created by deathbed wills, and the implications of that 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. There may be situations in which this is not possible and a deathbed will is the only viable option: perhaps the individual has not previously made a will, wishes to avoid intestacy and fears they do not have much time left.

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

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. It 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 (the recipient) 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. For more information, see our page Donatio mortis causa – gift in contemplation of death.