Last minute Wills
Ideally, a Will is prepared with a lawyer after careful consideration. Someone facing imminent death or decline may want to urgently prepare a new Will or update their current Will. These Wills are often referred to as deathbed Wills, last minute Wills or bedside Wills. These Wills are valid if executed properly.
For a Will to be valid it must meet the requirements in s11 of the Wills Act 2007 (“the Act”):
- The Will must be in writing;
- The Will-maker must sign the Will (or direct another person to sign on their behalf in their presence) in the presence of two independent adult witnesses;
- The witnesses must then sign the Will confirming they were present when the Will-maker signed the Will.
The Will-maker must have also intended to make a Will.
It is relatively common for last minute Will-makers to use family members to witness their Will, often because they are immediately available at the time. However, this can invalidate the Will or a gift within the Will if a witness is a beneficiary or the partner of a beneficiary.
If a Will does not meet the validity requirements, the Court can declare a Will valid under s14 of the Act. However, this can be an expensive and time consuming process, particularly if there is a dispute amongst beneficiaries.
Grounds for Challenge
If the Will is technically valid, the mere circumstances in which it is prepared makes the Will more vulnerable to challenge. This includes if the terms of the Will differ considerably from the terms of a previous Will or, where there is no previous Will, from the laws of intestacy. The more significant the changes from a previous Will or conventional norms, then the greater likelihood that consideration must be given to the issue of capacity or undue influence. For example, leaving an estate to an acquaintance or neighbour rather than the Will-maker’s children would be considered a significant change.
Challenges on the Basis of Incapacity
A Will-maker must have testamentary capacity at the time of making the Will. Illness and strong medications can impact a person's ability to understand the nature and effect of their Will. If there are any doubts as to capacity, this makes the Will vulnerable to challenge on the basis of incapacity.
The test for capacity was established in Banks v Goodfellow. At the time of signing the Will, the Will maker must:
- Understand they are making a Will and the effect of doing so;
- Understand the extent of their property being dealt with under the Will; and
- Appreciate moral claims which they ought to give effect to.
If a person is making a last minute Will, a doctor’s certificate confirming the Will-maker’s capacity and a lawyer’s file note will minimise the risk of a challenge.
Challenges on the Basis of Undue Influence
Where a Will makes a drastic departure from previous Wills or the rules of intestacy prior to death, questions of undue influence arise. This refers to a situation where someone has coerced or applied pressure to get a Will-maker to sign a Will. Undue influence affects whether a Will is valid or not.
A person alleging undue influence must establish that the alleged influence led to the Will and that the terms of the Will were not the result of the Will-maker’s own free judgment.
Preparing your Will
Ideally, you should prepare your Will when you are fit and healthy.
If you or your loved one are making a last minute Will, we strongly recommend engaging a lawyer to ensure the Will is valid and practical. This will provide certainty for you and your loved ones.