You can make a Will at any time if you are over the age of eighteen years, and have sufficient capacity (understanding of what you are doing by making a Will).
Whilst most people make a Will whilst they are in good health, sometimes due to unforeseen circumstances, Wills have to be prepared whilst someone is suffering from ill health or during the last stage of their life.
Last minute Wills can be valid, but there is an increased risk that they are invalid, or have been rushed and do not deal with your affairs as effectively as a more carefully contracted Will. Furthermore, you may be more vulnerable to be taken advantage of.
One example of when things can go wrong is the recent case of the will of Marcel Chu. In 2014, Mr Chu made a will a few days prior to his death, leaving nearly half of his estimated £1 million estate to his carer, Donna Henderson and her children. Under Mr Chu’s earlier will made in 2008, he had left his estate to his family and a close friend and Mrs Henderson received nothing. Judge Nigel Price ruled the document invalid and left the carer to pay a lawyers’ bill of £85,000.
A Will must be signed using the correct procedure to be held valid. Another requirement is that the person making the Will (known as the testator) has the relevant mental capacity required to make the Will.
The procedure for signing a will is outlined in the Wills Act 1837. A will to be valid must be:
- In writing and either signed by the testator, or by another person in their presence and by their direction; and
- Signed (or the signature acknowledged by the testator) in the presence of two or more independent witnesses, who are present at the same time and who must also attest and sign the Will.
If the signature on a will is assisted by another person, the will is only valid if the testator makes their own positive and clear physical contribution to the signing process.
In Mr Chu’s case Mrs Henderson conceded that she had held his hand when the will was signed, but claimed that she had only helped him. A handwriting expert in the case disagreed and said that the signature was not written by Mr Chu.
The court commented; “It may be that it is permissible for a testator to be helped in signing a document, but the scope of such assistance must be limited” and drew the distinction between leading and steadying a testator’s hand.
The court decided that the medical evidence was compelling and it could not reach “any conclusion other than Mr Chu lacked capacity” to make the 2017 Will.
The 2008 will was therefore valid and the 2017 was invalid.
We are sometimes instructed to make last minute Wills for clients, and can do so, but it is part of our legal duty to make appropriate checks that there is sufficient capacity to make a Will, and also that the instructions are our clients alone and not being influenced by anybody else. Unfortunately this does mean that sometimes we are unable to accept instructions which can be extremely unfortunate if the proposed Will reflect what the person would have wanted had they been able to give instructions.
There can also be practical disadvantages in making last minute Wills. They can be more expensive than making a Will in advance. Your opportunity for long term planning may be much more limited than if you had addressed these issues sufficiently far in advance. There might also be difficulties in arranging execution of your Will.
The morals are to try and make your Wills now rather than at the last minute. If you do need a Wills at the last minute, it would be particularly sensible to do so via a solicitor as this will ensure they are properly executed, and also that your ability to make a Will has been considered and recorded by the solicitor.
At Jordans Solicitors we are proud to be a member of the Law Society’s Wills and Inheritance Quality (WIQS) Scheme. We also have specialist solicitors who are members of STEP (the Society of Trust and Estate Practitioners). We are pleased to advise you in relation to any administration of estate issues. Our wills and probate solicitors are based in our Wakefield, Dewsbury, Horsforth and Selby offices and can be contacted free on 0330 300 1103 or you can request a call back and a member of our team will contact you.