The phrase “on their deathbed” is used to describe a situation where an individual is near death and expectant of death. It is commonly used to describe terminally ill patients or patients that are about to die, either at home or in a hospital. Many people that are “on their deathbed” may not have drafted a proper will to distribute their assets after death. In the event where this happens, a deathbed will may be drafted.
A deathbed will is created when a testator is at risk for imminent death. This type of will is often drawn together very quickly and, as such, may be risky. Drafting a proper will often requires legal guidance from an attorney that is well-versed in estate law, as these attorney will posses the knowledge of estate law required to avoid errors and potential contesting of the will.
However, a deathbed will is very conducive to be challenged by an unhappy beneficiary. For example, if the first born son believe that he is entitled to the majority of his father’s estate, he may challenge a deathbed will. The son may claim that his father, the testator lacked the required mental capacity to draft a proper will. The son may also claim that the will was forced, or fraudulent.
Because of this possibility, a deathbed will is not recommended. Wills prepared in this way are very prone to errors for a number of reasons:
A quickly drawn will may not properly consider strategies aimed to minimize or eliminate federal estate tax, causing an overabundance of estate tax that may not otherwise need to be paid (at that moment).
A quickly drawn will may not properly distribute property as intended, as certain intricacies may be overlooked.
A deathbed will may be so quickly drawn up that the proper legal requirements for a will may not be met. For example, if the testator finds out that he or she is about to pass away, there may not be enough signatures from witness not related to the testator and are not beneficiaries.
While a deathbed will may be as valid as a proper will, there a number of mistakes that can go wrong with a hastily drawn will. Even so, a deathbed will may avoid probate, as it may be considered as valid as a properly drawn will. In the end, writing a proper will while you are healthy is highly recommended. It will certainly relieve stress to your family and your beneficiaries.