It’s never too late to make a Will, but it’s always better to do it as early as you can. In many cases, it’s not uncommon for an individual to realise they need to make a Will when they know they are nearing the end of their life.

A Deathbed Will can bring a vital sense of peace and certainty to the individual, but it also raises important implications both for the family and for the lawyer involved. This is why everyone should make a Will while they are fit and healthy.

What is a Deathbed Will?

A Deathbed Will is a Will made by someone who is on their deathbed, or quickly approaching their death. Sometimes, the individual is able to contact a Wills lawyer, but often – they request a loved one to make arrangements to enable them to make a Will.

Typically, the Wills lawyer will then meet the individual (the client) at their bedside to discuss their estate and the proposed terms of the Will. The lawyer will then draft the Will, as quickly as possible, so that it can be signed and executed before the client dies.

What are the issues?

The lawyer has to be sure that the client has ‘testamentary capacity’ to make a will. This means the client must have the mental capacity to know what they are doing at the time the Will is made, otherwise it may not be valid. The law says that clients making a Will must understand the nature and effect of making the Will; they must be able to recollect both the nature and extent of their property; and understand the extent of what they are giving under the proposed Will.

Unfortunately, serious illnesses, injuries, and medical treatment can mean that the client does not have testamentary capacity. The lawyer who has any doubts as to their client’s testamentary capacity will need to take extra measures to protect both themselves and their client. Their primary obligation is to inquire into the testamentary capacity of the testator before undertaking to do a Will. This will mean obtaining medical evidence that the client has (or does not have) the required capacity to make a will.

If the evidence shows that they lack capacity, the lawyer must refuse to act. It’s worth noting that under their professional rules of conduct, a lawyer must also decline to act if they believe they are not sufficiently competent to deal with matter. In this case, they are required to help the client find another suitable lawyer.

A further risk with Deathbed Wills is the reality that individuals nearing death are likely to be at greater risk of exploitation by others because of their vulnerability – a factor that their lawyer will need be alert to. If they suspect duress or coercion, the lawyer must refuse to act.

A timely service must also be offered because of the nature of Deathbed Wills. If the Will is not drawn up within a reasonable time frame, and your loved one dies before the Will is executed, your lawyer could face claim for professional negligence.

The question is: what is a ‘reasonable’ length of time? This typically depends on factors such as how much time the client has left to live and, therefore, the sense of urgency; and how complex the will is expected to be. A simple Will could reasonably be drawn up on the same day, but a week or more may be reasonable if the Will includes complex trusts.

What does this mean?

Many individuals seeking to make a Will on their deathbed, or when seriously ill and knowing they are nearing the end of life, are fully aware of knowing what they are doing. However, given the particular circumstances, if your loved one wishes to make a Will you must be prepared for your lawyer to make certain investigations before drafting the Will.

This may include speaking with the client on their own, without anyone else in the room, to ensure they have chosen to make a Will of their own free will and are not under pressure from a third party. The lawyer will most likely consult with doctors (with the client’s consent) and obtain confirmation that they know and understands what they are doing, and has the necessary capacity.

How can we help?

If you need to make an urgent Will, or you have a loved one who wishes to make a Will pending their imminent death, contact us now. The experienced Wills and Trusts solicitors at Rogerson Law Group have years of experience providing specialist advice to clients nearing the end of life and drawing up effective wills as a matter of urgency. Our clients’ needs are always paramount.

Wills lawyers at Rogerson Law Group provide will drafting services in the entire GTA including Toronto, Scarborough, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, and Barrie and surrounding areas with offices located in downtown Toronto, Barrie, and an associated office Ottawa.