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The mortality of deathbed wills

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Changing your will on your deathbed is not a good idea. Such situations are extremely delicate for not only you, but your family and the beneficiaries involved, as well as your lawyer. You may want to change your will at such a time because you have decided to change a person’s entitlement in your estate to increase his or her share and correspondingly decrease another beneficiaries share. So, what can happen if you change your will on your deathbed? Litigation will likely ensue.

Wills can be challenged in court. Some challenges I see as a lawyer are allegations that: (1) the document was not executed properly; (2) that the deceased did not have testamentary capacity; and/or (3) certain individuals who benefited from the change exercised undue influence over the deceased. It is also common to see an allegation that suspicious circumstances surrounded the making of the new will or codicil.

In Ontario, in order for a will to be properly executed, it must be signed in the presence of at least two witnesses at the same time and who must also sign the will in the presence of the testator and each other. The witnesses cannot be beneficiaries or a spouse of the beneficiaries. However, these requirements are only part of what is needed. Demonstrating to the court that the will was properly executed, and that it occurred is an entirely separate matter. After the will is signed, witnesses should (although it depends on the practice of the solicitor) swear an affidavit (a document which sets out certain facts) stating that the witnesses signed the will using the process I have described above (this affidavit is called an affidavit of execution). There is also the possibility of creating a holograph will but that is a discussion for another day.

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Wills can also be challenged based on the lack of testamentary capacity of the deceased. Testamentary capacity refers to the capacity of a person to make a will. In Ontario, there is a legal test the Court applies to determine if someone had testamentary capacity at the time of the making of the will. The court looks at a variety of evidence in order to make this determination including: witnesses, medical evidence, and expert reports. Needless to say, deathbed wills make it easier to argue that a person did not have the requisite capacity to change their will when his or her health has declined and death is imminent.

A challenger to a will can also argue that the beneficiary exercised undue influence that caused the deceased to change his or her will. Undue influence means that someone exercised more than just persuasion but coercion. The onus is on the challenger to prove undue influence existed.

This is not to say that a deathbed will can never be valid. Your health and state of mind are central to determining most of these issues. However, you will not be around to make these arguments or prove these points!

Lastly, even if you want to change your will before you leave this world, you might have trouble finding a lawyer willing to do it for you. A lawyer who specializes in wills and estates will be very cautious about taking on your retainer. There are many risks involved for the lawyer, the least of which is being called as a witness at trial. So, try not to call the lawyer from the hospital or when you are going into surgery. Plan ahead for your family and your estate.

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