Someone who is about to die may elect to write and sign a new will, which is known as a deathbed will. Although the situation may not always be ideal for giving thorough thought to the provisions of the Will—and family members may be concerned that the will-maker is making poor choices—a will produced in this scenario may be just as legitimate and enforceable as one prepared at home or in a lawyer’s office.
Validity of a Deathbed Will
If state law permits it, a will must be wholly handwritten and signed by the person creating it; OR signed and dated by the will-maker in the presence of witnesses who know the document is the person’s Will and likewise sign it.
An oral deathbed will, also known as a nuncupative will, may be legal in exceptional situations. Most states prohibit them, and if you are settling an estate, you are unlikely to come across a claim that the dead individual created a legal oral will.
There are no legal requirements for when or where a will must be written or signed, and it is not unusual for someone in a hospital or at home to write a will as they near death. A sick individual may have intended to create a will earlier but was unable to do so. A person may sometimes discover that his or her Will is outdated and choose to update or cancel it, or circumstances towards the end of life may prompt someone to alter the provisions of a prior will.
Whatever the cause for the last-minute Will, it is legitimate provided it was completed according to the requirements required by the state where the individual lived. A valid will does not need notarization. It is, however, needs to be signed by two adult witnesses. The witnesses are not needed to read the Will, but they must be aware that the sick person wishes for it to be his or her final Will and testament. (North Dakota is the only state that enables a will to be notarized or witnessed.) In certain states, the witnesses must not be beneficiaries of the Will.
When a person in poor health is executing a will, witnesses are very necessary. If there is a dispute after the death regarding whether the dying person was entirely aware of what they were doing or were being unfairly influenced by someone expecting to inherit, the witnesses will be summoned before the probate court. They will testify about what they witnessed under oath: Before signing the paper, did the will-maker (testator) explicitly explain that it was his or her Will? Did someone seem to be in charge of the person’s actions regarding the Will? Was the person who wrote the Will aware of what he or she possessed and who his or her relatives were?
Holographic Wills: Special Concerns
Because handwritten or holographic wills are not witnessed, they may be particularly troublesome if they are written in the latter days of someone’s life. Relatives who are dissatisfied with what they get (or don’t) under the Will are more inclined to contest a handwritten and signed document without witnesses.