Is a "Deathbed Will" Valid?

Last-minute wills, often called "deathbed wills", can be just as valid as a will you create in advance yourself or in a lawyer's office.

Someone facing imminent death may decide to draft and sign a new will, which may be referred to as a deathbed will.  Although the circumstances may not be ideal for giving careful consideration to the provisions of the will—and family members may worry that the will-maker isn’t making good decisions—a will made in this situation can be as valid and binding as one made at home or in a lawyer’s office.

Validity of Deathbed Wills

To be valid, a will must be either:

  • entirely handwritten and signed by the person making it, if state law allows it; OR
  • signed and dated by the will-maker in the presence of witnesses, who know that the document is the person’s will and also sign it

Under very unusual circumstances, an oral deathbed will, also called a nuncupative will, may be valid. Most states don't allow them, and if you're wrapping up an estate, you're very unlikely to come across a claim that the deceased person made a valid oral will.

There are no legal rules about when or where a will must be prepared or signed, and it’s not uncommon for someone who is hospitalized or at home to prepare a will when facing the end of life. Sometimes an ill person meant to prepare a will earlier and was unable to get it done. A person might realize that his or her will is old and out of date, and want to revise or revoke it, or events near the end of life might lead someone to change the terms of a previous will.

Whatever the reason the will was made at the last minute, it is valid if it was executed with the formalities required by the state in which the person resided. A will does not need to be notarized to be valid. It does, however, need to be signed by two adult witnesses. The witnesses don’t need to read the will, but they must be aware that the ill person intends the document to be his or her last will and testament. (The only exception is North Dakota, which allows a will to be either notarized or witnessed.) In some states, the witnesses cannot be people who will inherit under the will.

Witnesses can be especially important when a person in very ill health is executing a will. After the death, if there is any disagreement about whether or not the dying person was fully aware of what he or she was doing, or was being unduly influenced by someone hoping to inherit, the witnesses will be called to probate court. They will testify under oath about what they saw: Did the will-maker (testator) clearly state that the document was his or her will before signing the document? Did anyone appear to be controlling what the person was doing concerning the will? Was the will-maker aware of what he or she owned and who his or her family members were?

Special Concerns with Holographic Wills

Because handwritten or holographic wills aren’t witnessed, they can be especially problematic if made in the last days of someone’s life. Relatives who are unhappy with what they inherit (or don’t) under the will may be more likely to challenge a document that is handwritten and signed without any witnesses.

Getting Expert Help If You Have Questions

If you have questions about the validity of any will, consult a lawyer who’s familiar with the issues involved. Will contests are rare, but when they happen, they can be complicated and expensive—and ruinous to family relationships. A lawyer can help you head off trouble or handle it if you can’t avoid it.

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