Final wishes: Making an urgent will or giving a gift

Living through a global pandemic has meant seeing loved ones taken from us at an alarming rate, and it has been distressing for many to see someone taken into hospital and not know if you might be able to see them again.

‘Whilst planning ahead to document your wishes in a will is the best way to arrange the division of your estate, sometimes plans need to be put in place suddenly and at the last minute from a hospital, hospice or care home,’ says Wendy Mustard, a Solicitor in the Wills, Trusts, Probate & Court of Protection team with Richard Reed Solicitors.  ‘If you are concerned that you may not be well enough to return home and wish to put your affairs in order then a solicitor can help you to make a will or make arrangements for specific gifts.’

It is always important to balance the need to protect one another’s physical health with the urgency of making a new will or a lifetime gift.  It is still possible to see your solicitor and obtain legal advice.  This can either be via video conferencing software or face-to-face, so long as it is safe to do so and all coronavirus precautions are met.

Testamentary capacity

It is vital for making any will or gift that you have ‘testamentary capacity’. This means that you must understand that you are making a will or a gift, you must know the extent of your estate, and you must comprehend any claims to which your estate could be subject following your death.

If your mental capacity is in any doubt, a medical report may also be needed.  For example, a recent diagnosis of dementia will not necessarily mean that you do not have testamentary capacity, but a medical expert is likely to be needed in order to confirm this.

This may slow things down and complicate the process, but a solicitor will be well versed in these issues and can help to ensure that they do not prevent a valid will from being executed in time.

Precautions against undue influence

Any decision to make or amend a will must be your own.  If there is any hint of undue influence, steps will need to be taken to protect you.  For example, it may be that you have asked a family member or friend to contact your solicitor for you, if that person is also intended to be a beneficiary your solicitor will need to be satisfied that they have not pushed you to make the will.  Unless they are satisfied that your instructions are yours and yours alone, the solicitor will be unable to draft the will on your behalf.

Finding witnesses

As with any will, a will which is made in a care setting must be signed by you and by two independent witnesses all present together at the same time.  

Your witnesses must also be independent, meaning that they cannot be named as one of your beneficiaries, nor can they be the spouse or civil partner of any of your named beneficiaries.

Finding willing witnesses to a deathbed will can sometimes be tricky, as many medical professionals will not witness the wills of those in their care.  However, your solicitor can usually bring a colleague and they can both act as your witnesses.

Handwritten wills

Whilst it is a requirement that all wills must be in writing in order to be valid, it is not necessary that they are typed. A handwritten will may be the best option, given that there may be a shortage of time, and our solicitors are best placed to ensure that a handwritten will is effective and appropriate to your circumstances.

“Donatio Mortis Causa” – making a deathbed gift

Sometimes, although not very often, time is too short to make a will and a gift can be given by a person who expects to die soon.  These gifts are called ‘gifts in contemplation of death’, but are still referred to by their Latin name, ‘Donatio Mortis Causa’. 

For the gift to be valid you must physically give the item to the recipient.  For example, you must physically hand over the item to the intended recipient.  If you are unable to successfully do this, the gift will not be valid.  This could occur if the person you intend to give the item to is unable to visit you in time or if certain formalities have to be followed to transfer ownership. 

If the deathbed gift is valid, it is important to note that it will override the terms of any prior will.  If you specifically give an item in your will to one person and later give it to someone else on your deathbed, it cannot pass under your will and the beneficiary in the will stands to be disappointed when the terms of your will are ultimately revealed.

As deathbed gifts have complex rules, it is best to instruct a solicitor to advise on the potential gift so as to prevent a problem arising later for your executors.

What if I recover?

If you make this type of gift, you give up control of it to the recipient before you die, but the recipient does not become the absolute owner until your death.  That means that if your health recovers after having made a deathbed gift, then the gift is void and it remains yours.  It also means that it is possible to expressly revoke the gift once you have made it, whilst you are still alive.

Gifts in contemplation of death and deathbed Wills are not the same thing, but they are sometimes confused.  A deathbed Will instructs your executors how to distribute your property, but a gift in contemplation of death passes the ownership to the recipient without the need to probate or execution.  The best way to dispose of your property, to avoid confusion and disputes, is to make a clear distribution of your property in a Will. 

Practical considerations for deathbed wills and gifts

Leaving any will or gift until the last minute means that time will be against you. This brings with it the risk that there may not be enough time to give effect to your wishes.  If you are in a hospital or a care home, visiting restrictions might also prevent things from proceeding swiftly enough.

When making any decision about gifts or a will, it is important that these are not made in haste. However, if you are certain about the gift or will you wish to make, professional advice is vital in preventing your decision from being contested after your death, and our solicitors can help you ensure that you adhere to all relevant rules and make your final wishes validly. 

Of course, it is always best to make a will whilst you are fit and healthy.  Doing so allows you to make decisions at your own pace and to take as much time as you need to consider how you would like your estate to be distributed once you die. 

For further information, please contact a member of our Wills, Trusts, Probate & Court of Protection team on 0191 567 0465 or email: [email protected]

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