Drafting a deathbed will

Litigation concerning wills, fuelled by inflation in the property market and the increasing incidence of dementia, is on the rise. Some of the recent and most interesting cases concern challenges to wills made by testators who are close to death. When the validity of a will is challenged the draftsman may be criticised. Therefore practitioners must be particularly careful when assisting testators who are seriously ill. This can be difficult because of the time available. However, if a solicitor delays and no will is executed, those who would have benefited from his intended will may have a claim in negligence under White v Jones [1995] UKHL 5.

So, what are the main pitfalls involved in making a deathbed will and how can you avoid them? First, draftsmen can limit potential criticism by explaining that they are not able to consider the testator's circumstances including domicile, the status of his property and tax planning in the manner that they would otherwise wish to do. It is often sensible to keep matters simple but that will not always be possible. Attendance notes should always be full and written up as soon as possible.

Due execution

Section 9 of the Wills Act 1837 prescribes the formalities for making a valid will. A testator may sign his will or another person can sign it at his direction. This must occur in front of two witnesses or the testator must acknowledge his signature in front of the witnesses. A person will usually only direct another to sign his will on his behalf if he is unable to do so himself. This will be a rare occurrence but is probably most likely to occur when a testator is close to death and too frail to sign.

The question of what amounts to a direction to sign a will was considered by the Court of Appeal in Barrett v Bem [2012] EWCA (Civ) 52. Vos J accepted evidence that the testator had wanted to sign the will but could not physically do so. His daughter Anne stepped in to assist and between the two of them the will was signed. Vos J held that the testator had directed Anne to sign on his behalf and admitted the will to probate.

The Court of Appeal disagreed. It held that, although a testator can direct a will to be signed on his behalf by conduct, the conduct has to be positive in nature and passivity will not suffice. A wish to sign the will could not be equated with a wish to direct another to sign on his behalf. The testator had not positively done anything to direct Anne to sign and the will was therefore invalid. Lewison LJ suggested that where a testator has directed another to sign a will on his behalf this should if possible be recorded in the attestation clause of the will. Therefore, solicitors unexpectedly faced with this situation should, if necessary, be ready to make a manuscript amendment to the attestation clause.

Testamentary capacity

Banks v Goodfellow [1870] LR 5 QB 459 states the test for testamentary capacity. It requires that the testator must be able to understand: (1) the nature of the act of making a will and its effect; (2) the extent of the property of which he is disposing; and (3) the 'moral claims' upon his estate by potential beneficiaries such as members of his family. In addition to this, the testator must not be subject to any 'insane delusion' that influences his ability to weigh these claims.

It is often difficult for solicitors to assess whether a person has capacity, especially where he or she is gravely ill. Where a testator is aged or infirm, the solicitor should try to follow the 'golden rule' (see Kenward v Adams (The Times, 29 September 1975)) '“ namely that the will should be witnessed by a suitably qualified medical practitioner who has assessed the testator's capacity. This rule was emphasised again by Briggs J in Key v Key [2010] EWHC 408 and should be followed if possible. However, in Wharton v Bancroft [2011] EWHC (Ch) 3250, Norris J helpfully commented that where a solicitor is drafting the will of a dying man it is not possible for him to 'simply conjure up a medical attendant' given the multitude of practical problems that may present themselves in achieving this, such as uncooperative doctors or clients.

One problem that may arise in the context of deathbed will planning is that the testator has capacity when he gives instruction, but his capacity diminishes before his will is executed. In Perrins v Holland [2011] Ch 270, the Court of Appeal considered this issue in a case in which the testator was suffering from advanced multiple sclerosis at the time at which he executed the will. The court upheld the rule in Parker v Feldgate [1883] 8 PD 171 that a will is validly executed even if the testator lacks testamentary capacity at the time of execution if: (1) the testator had earlier given instructions for the drafting of the will while he had capacity; and (2) the testator knew that the document he was signing conformed with the instructions he had previously given. The appellant's application for permission to appeal to the Supreme Court remains outstanding.

The rule in Parker has been extended to apply to inter vivos transactions. In Singellos v Singellos [2011] Ch 324, the court upheld the validity of documents giving effect to a complex inheritance tax scheme involving inter vivos gifts and using offshore companies despite the fact that the person signing them was at the time suffering from the advanced stages of cancer, which had left her unable to give any further detailed instructions to her solicitor and lacked capacity when the documents were executed.

The rule in Parker provides a solution if capacity has declined but its conditions can still be satisfied, but reliance on the rule is an invitation to disappointed beneficiaries to litigate.

Knowledge and approval and undue influence

For a will to be valid, the testator must execute it of his own volition and must know and approve of its contents. If the testator is able to understand what he is doing, it is likely that he also knows and approves of it. Nevertheless, it is critical for a solicitor to ensure that the will is a product of the testator's intentions and not of somebody else's. The solicitor must also be alert to any suggestion of undue influence, even though challenges based on undue influence rarely succeed. The risk of both increases the closer to death testators come as they become more vulnerable. Draftsman should try to take instructions directly from the testator and read over the will before it is executed and the testator should not be seen in the presence of the beneficiaries or those connected with them.

Some circumstances will obviously be suspicious but this will not always be the case. In Gill v RSPCA [2010] EWCA Civ 1430, the testator suffered from extreme agoraphobia, which severely impaired her understanding of her will even though it was read over to her by her solicitor. The Court of Appeal held that she did not know and approve of the contents. Lord Neuberger MR commented, however, that given the medical evidence at trial it was most likely that the solicitor who drew up and read over the will would not have even appreciated that there was any problem with the testator's mental state when he met her. Similarly it can be difficult to recognise insane delusions (see Re Ritchie [2009] EWHC 709 (Ch)).

Deathbed marriages

The issues can be further complicated if the testator also wishes to contract a marriage on his deathbed, as in Wharton, perhaps for inheritance tax purposes. The marriage will revoke any will, other than a will made in contemplation of that marriage. The level of capacity required to marry is relatively low and lower than that required to make a will. A client therefore may be left intestate and it can be difficult to obtain authorisation from the Court of Protection to execute a statutory will on a client's behalf at very short notice. Furthermore, if a client undertakes a marriage ceremony this will have the effect of revoking his will even if he lacks capacity to marry. If he dies with the marriage still subsisting there is then nothing that can be done to reinstate any revoked will because the marriage is voidable only and cannot be avoided after the death of one of the parties (the situation is different if the marriage is void, for example, because it is bigamous). The only remedy available in those circumstances is a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for those who have standing.