Making a Will at the Last Minute

The legal requirements for a valid will do not relax because time is short: the person must have testamentary capacity, must know and approve the contents, and the document must be signed and witnessed correctly under section 9 of the Wills Act 1837. What changes is the practical risk of something going wrong, and the likelihood that the will may later be scrutinised or challenged, particularly if it differs significantly from an earlier will or from what family members expected.

For this reason, a will made in a hurry, especially where the person is seriously unwell, benefits enormously from professional involvement: a solicitor can assess and record capacity at the time, choose appropriate witnesses, and keep a clear note of the circumstances, all of which help protect the will from being disputed later.

For a will to be valid, the person making it must understand that they are making a will and what it means, understand broadly the extent of what they own, and be aware of the people who might expect to benefit from their estate, without being affected by a delusion or disorder that distorts these judgements. This test, from the case of Banks v Goodfellow, is what courts return to when a will's validity is questioned.

Serious illness does not automatically mean someone lacks capacity, many people retain full capacity even very close to death, but conditions affecting consciousness, medication, or cognitive function can raise genuine doubt. If there is any question about capacity, a solicitor can arrange for a doctor to assess and record capacity at the time of signing, which can be extremely important if the will is later questioned.

The same rule applies wherever the will is signed: two independent witnesses, not beneficiaries or married to a beneficiary, must be physically present together when the person signs, and must then also sign in that person's presence. Hospital staff or hospice staff can sometimes act as witnesses, though hospitals may have their own policies about this, so it is worth asking a nurse, ward manager or hospital chaplain, or contacting a solicitor who can attend and bring witnesses.

Some solicitors offer an urgent or 'deathbed will' service specifically for this situation, able to attend hospitals or homes at short notice to take instructions, assess capacity, and supervise correct signing. If time allows even a small amount, this is generally worth pursuing rather than relying entirely on a standard online will completed without professional support.

There is a limited exception under the law for certain military personnel in actual military service, and some mariners at sea, known as a privileged will, which can in narrow circumstances be valid even if made informally, without the usual signing and witnessing requirements, and even orally in some cases. This is a specific historic provision that applies to a very small number of people in defined circumstances, and it is not a general shortcut for urgency caused by illness.

If you think this exception might apply to your situation, take advice from a solicitor rather than assuming an informal will is valid, since the conditions are narrow and specific.

If professional help truly cannot be arranged in time, the same core requirements still apply: the person must have capacity, must clearly express their wishes in writing, and the document must be signed in the presence of two witnesses present together, who then also sign in that person's presence. A guided online will can still be used to produce clear wording quickly, but the drafting speed is rarely the bottleneck in a genuine emergency, the availability of capacity, a pen, paper or printer, and witnesses usually is.

Afterwards, whatever the circumstances, it is worth having a solicitor review the will as soon as possible to check it is valid and to advise on anything that may need addressing, particularly if it may later be questioned by family members.

If you are helping a parent, partner or relative through this, be mindful of the appearance of undue influence, even if your intentions are entirely good. Where possible, let the person making the will give instructions privately to a solicitor or independent witness, rather than only through you, since this protects both the will and your own position from later suggestion that you influenced the outcome.

This is an emotionally difficult situation for everyone involved, and it is entirely reasonable to want it handled with care as well as speed. Involving a solicitor, even briefly, generally gives everyone, including the person making the will, more protection and peace of mind.