‘Deathbed Wills’: Changing a Will Just Before Death

In the fictional Grey’s Anatomy universe, the polarising Dr Alex Karev persuades an equally grumpy old lady (known as Dragon Lady) to donate $100,000 to fly African orphans to their hospital in Seattle for urgent medical care. She (reluctantly) verbally agrees, but later dies, leaving the doctor reeling. Burdened by debt, Dr Karev eventually receives a surprise cheque from her estate for double the promised amount. 

Now, from a legal perspective, this raises questions about last-minute changes to her Will. If the deceased had no visitors or family, it may have been easy for her to alter it right before she passed – possibly with a quick call to her lawyer. However, in real life, changing a Will before death typically involves professional assistance due to legal complexities, especially if there are next of kin involved. (Sorry Shonda Rhimes, but you’ve hurt us all enough.)

Can a person change their Will right before they die?

They can, but it’s not always simple (or recommended, for that matter). See, when a person makes drastic changes to their Will right before they die, it can cause problems when it’s time to sort out their estate. Often colloquially called ‘Deathbed Wills’, these types of Wills are solid contenders for being contested by upset family members and/or people who were set to inherit from the original (or former) Will. 

Creating a new Will right before passing away isn’t necessarily an issue. For instance, if your loved one knew they were dying and wanted to ensure their wishes were accurately reflected, and if there were no problems with their mental capacity and everyone (who was supposed to) was left ample provisions, then the Will should be okay (as long as it meets all legal requirements).

Can a person with a form of dementia change their Will?

It’s a good question. Even a person with dementia might still be capable of making valid changes to their Will. However, this depends on whether they have the mental capacity to understand the changes. This capacity, called testamentary capacity, means the person comprehends the effects of their changes. If someone believes the deceased lacked this capacity when making changes, they would need to contest the Will to have the changes voided. (They must prove reasonable suspicion, though.)

What would a family contest a ‘Deathbed Will’?

There are many reasons why an individual or a collective family would choose to contest a last-minute Will. See some examples below.

1. Undue influence

Certain telltale signs could indicate that a vulnerable person has been unduly influenced by another individual. These may include alarming behaviour changes, unexpected provisions for certain people in their Will, unexplained unequal treatment of beneficiaries and more. 

If a person has made a new Will before their passing and some red flags were raised before or after their death, this could be cause for alarm and be reason enough for a person to contest the Will. 

2. Testamentary capacity

The testator (the Willmaker) must be of sound mind when they write the Will. This means that they must understand the nature and effect of the document they are creating and the consequences of their decisions. They must also have the capacity to make these decisions freely, without undue influence from others (as we covered above). 

If there is any reason to believe that a person is not of sound mind, then this is when some individuals choose to contest the Will. 

3. The Willmaker did not know of/approve of the new Will

When a person creates a Will, it’s assumed they understand and agree to the contents. But, if suspicious circumstances cast doubt on this, there must be valid reasons to challenge the Will. 

For example, some people may need the Will to be read aloud to them. They may:

• Be blind or visually impaired.

• Not speak the language well.

• Not be able to read or write. 

Additionally, if only part of the Will was read to someone, the unread part might be considered invalid (since they wouldn’t know what it said). If a person believes that this may have been the case, they may then choose to take actionable steps to challenge the Will.

4. The Will is fraudulent or forged

If there’s reason to believe a person named in the Will deceived the deceased into giving them something they shouldn’t have, this is known as fraud. For instance, the deceased might have been told a document was something else entirely, like a Power of Attorney or a deed, but it turned out to be a Will. However, there has to be proof that fraud happened and that it influenced the making of the Will. Lastly, forgery means the Will was made or signed by someone other than the deceased, and this may be grounds for contesting a Will if there is suspicion, too.

Wrap up 

While a person can make legitimate changes to their Will in their final moments, it’s generally recommended to update your Will as the big life changes occur, so your wishes are always actioned, no matter when death comes knocking. On the flip side, there are cases where no problems arise – where the deceased was mentally sound when the last-minute changes were inked, and everyone is taken care of (provided the Will is legally valid).

When in doubt, write your legal Will long before anyone will ever read it (except our friendly and knowledgeable lawyers, of course!).

Found this guide helpful? You may benefit from reading our guide on What to do if you’ve been left out of a Will (plus mistakes to avoid!).

Disclaimer: The content of this blog is intended to provide a general guide to the subject matter. This blog should not be relied upon as legal, financial, accounting or tax advice.