In a book written by a palliative nurse “The Top Five Regrets of the Dying” the top 5 regrets are:

• I wish I had the courage to live a true life to myself not the life others expected
• I wish I had not worked so hard
• I wish I had the courage to express my feelings
• I wish I had stayed in touch with my friends
• I wish I had let myself be happier

What if on your death bed you remember that you have not paid attention to my articles and you have not made or updated your will?  With two thirds of UK adults being without a valid will it is no surprise that some people will be forced to consider writing their will on their death bed.  

A last minute change to a will can cause family tensions.  Some relatives may have been expecting to inherit and if they receive less or nothing then they may contest your will.   In order to be valid your will must be in writing, signed by you and witnessed by 2 independent people and made freely by you with no pressure from a third party.  If you are not well at the time your will is made then it may be advisable to obtain a medical certificate stating that you have sufficient mental capacity and awareness to make a will.  By providing a medical certificate alongside your will then you are protecting your will from being contested after your death on the basis that you did not have full mental capacity.

Even when death is expected the contents of death bed wills can cause shock and confusion to your family and you may not have had time to discuss it with them.  If you are able write them a letter explaining why you have taken the steps you have then this will assist them.  One client said “My mother updated her will just before her death.  I was the only person named.  I had expected the will to look after other family members.  I felt confused and guilty.”

Sometimes it is not possible to make a last minute will and some people decide in their last hours to make a death bed gift.  This is known as Donatio Mortis Causa and is essentially a gift made in contemplation of death.   

In the case of Ellen Elizabeth Exler she had died without leaving a will.  She was mentally and physically frail when she died and she was 91 years of age.  Her estate passed under the intestacy rules to her 2 surviving brothers and her 2 nieces.  Mrs Exler’s estate was worth £564,013.15 and included her house – Hadley House – worth £550,000.

Mrs Exler’s brother Stephen Keeling claimed that his sister had made a death bed gift of Hadley House by telling him “I want you to have the deeds of the house.  I would rather you had it than anyone else”.  Mrs Exler’s other brother and nieces contested this claim. They said that Mrs Exler was openly hostile to Mr Keeling and had told her carers that she did not want him to get her house. The High Court did not believe Mr Keeler and noted that she had not mentioned the gift to anyone else or taken up the opportunity to make a will. 

Cases where a death bed gift has been held to be valid by the court can be hard to find.

 As always do plan in advance and make sure your legal affairs are in order.