Every lawyer has done it and every lawyer hates it: trundling off to the hospital or nursing home to do a deathbed will.
Why is it that some people seem to feel that the only time to make a will is when they are fighting for their last breath?
I once had a hospice nurse tell me (as she was making her will) that she had for some time been informally keeping track, and had determined that fully 50% of the people being admitted to hospice had not made a will! What more forceful reminder that it’s time to get your affairs in order is there, than being admitted to hospice? (and if the terminally ill are determined to procrastinate, no wonder it is like pulling teeth trying to get the rest of us to consider our own mortality and put pen to paper to record our final wishes )
We hate the call to attend to deal with a deathbed will for a number of reasons, not least of which is the fact that lawyers (allegedly) are people too, and find the whole experience unpleasant, depressing and emotionally draining.
Lawyer’s feelings however are the least of it. Deathbed wills are professionally dangerous. We carry a heavy responsibility to ensure that the wills we write truly reflect the wishes of the client, and that the client is legally capable of expressing those wishes.
Typically, we arrive to find a bedridden client who is extremely frail, significantly medicated. and frequently barely coherent. Determining their competence can be a real challenge. Attending healthcare professionals, often made nervous and distrustful by the presence of a lawyer in their midst, suddenly become circumspect in their views about competency. No one wants to incur the liability of an incorrect choice.
Legal competency is a nuanced concept, best teased out over time- either a lengthy visit, or perhaps multiple attendances- time which , unfortunately, the testator no longer has.
The one thing the testator will have at their bedside will be a gaggle of expectant beneficiaries, usually the same ones who spearheaded the campaign to drag the lawyer into the deathbed scene; all of whom are eager to provide their own opinions as to the testator’s capacity, and to translate and interpret the testator’s last wishes. Not being able to take such second hand instructions, and needing bedside privacy to obtain instructions first hand, often leads us into some tense interactions with those at the bedside
Deathbed wills are a pain all around for a lawyer. Even the simple task of viewing identity documents , which it is mandatory that we verify, becomes a hassle, as they are invariably safely locked away somewhere else, and often expired
Then too there are the horror stories of deathbed wills gone wrong. Testators staring into the final abyss suddenly inspired to make eccentric testamentary choices, or eschewing the services of a lawyer entirely, in favour of a handwritten concoction, or some dangerous drivel downloaded from the internet, sometimes defeating entirely the actual implementation of their intentions.
It is all so unnecessary.
The time to make a will is now- not when you are hours away from death. You owe it to your loved ones to make your final decisions when you have a clear head, and are removed enough from the ultimate event, to calmly reflect upon what you are doing. Frankly, you owe it to yourself as well- when the time comes, and it will. you deserve the peace o mind that comes from having your affairs in order.
Here endth the rant.