Is a "Deathbed Will" Valid?

Last-minute wills, often called "deathbed wills," can be just as valid as a will created in a lawyer's office.

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Nolo

Someone facing imminent death might decide to draft and sign a new will, often referred to as a "deathbed will." Although the circumstances might not be ideal for giving careful consideration to the gifts you make in the will, a will made in this situation can be just as valid and binding as one made before the will-maker became ill. In fact, in certain situations, even a handwritten and unwitnessed will can be valid, and in even more rare situations, so can an oral will.

In this article, we'll look at what a deathbed will is, why someone might make one, and how to know if the will is valid.

What Is a Deathbed 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's hospitalized or bedridden at home to prepare a will when facing the end of life. Such a will is called a "deathbed will."

There are many reasons someone might make a deathbed will, including:

  • when someone without a will is facing death
  • when a dying person's existing will is old and out of date, or
  • when recent events lead someone near the end of life to change the terms of a previous will.

Is a Deathbed Will Valid?

Whatever the reason the will was made at the last minute, it's valid if it was executed with the formalities required by the state where the person lived. While state requirements can vary slightly, to be valid, a will must usually be:

  • made by someone of sound mind
  • in writing—which usually means typed or printed, but can also be handwritten (and in very limited situations, some states can even waive the "in writing" requirement by allowing oral wills—see more below)
  • signed by the will-maker (or signed by another person in the will-maker's presence and at the will-maker's direction), and
  • signed by two adult witnesses in the will-maker's presence (except in North Dakota, where a will can be either notarized or witnessed). However, some states do allow handwritten wills that are not witnessed, also called "holographic wills" (see below).

Some people are surprised to discover that a will doesn't need to be notarized to be valid (unless you're in North Dakota and choose notarization over witnessing). One reason for this is because wills are often accompanied by a notarized statement (called a "self-proving affidavit") that can be helpful later when it's time to file the will in probate court.

The self-proving affidavit helps your loved ones skip a few probate steps. However, in a true deathbed situation, it may be difficult to complete this sworn, notarized document quickly, and that's fine. It doesn't affect the validity of the will itself.

In deathbed or emergency situations, whether the will-maker is of sound mind or has the required mental capacity to make a will might be of particular concern. Generally, to make a will, you need to understand:

  • what a will is and that you are making one
  • the relationship between you and your immediate family members
  • the kind of property you own, and
  • how you wish to distribute your property.

The Importance of Witnesses to a Deathbed Will

When you have witnesses, the witnesses don't need to read the will, but they must be aware that the ill person intends the document to be a last will and testament. In most states, the witnesses can't be people who will inherit under the will.

Witnesses can be especially important when the person making the will is very ill. After the will-maker's death, if there are disagreements about whether or not the dying person was fully aware of what they were doing, or if there are suspicions that the person was being unduly influenced by someone hoping to inherit, the witnesses will be called to probate court.

The witnesses would testify under oath about what they saw. At minimum, they could be asked:

  • Did the will-maker (also called the "testator") clearly state that the document was their will before signing it?
  • Did anyone appear to be controlling what the person was doing concerning the will?
  • Was the will-maker aware of what they owned and who their family members were?

Holographic Wills (Handwritten, Unwitnessed Wills)

Some states allow "holographic wills," which are handwritten wills that aren't witnessed. State laws can vary widely. Florida doesn't allow holographic wills at all, while some states allow them in only certain emergency situations. Many states require all or part of the will to be in the will-maker's own handwriting.

Holographic wills don't have the formal look of most wills. As a result, relatives who are unhappy with what they inherit (or don't inherit) might be more likely to challenge a handwritten document that's signed without any witnesses.

Still, more than half the states allow holographic wills to be admitted to probate under certain circumstances. An executor dealing with a holographic will generally must prove that the will (at least the important parts) is in the deceased person's handwriting and that the person intended for the document to serve as their will.

Are Oral Deathbed Wills Valid?

Under very unusual circumstances, an oral will, also called a "nuncupative will," might be valid. Most states don't allow them, but a few states make an exception for very limited situations, such as if you're serving in the military during a war. However, the general rule is that a will must be in writing to be valid.

Getting Expert Help If You're Dealing With a Deathbed Will

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 they can be complicated and expensive when they happen, and they can destroy family relationships. A lawyer can help you head off trouble or handle any that does crop up.

You can avoid putting your family through the uncertainty of dealing with a deathbed will by getting your affairs in order before you're facing the end of your life. Powerful estate planning tools like Nolo's Willmaker allow you to create the documents you need to ensure your family understands your last wishes.