Making a Will When Seriously Ill

It is important to separate physical illness from testamentary capacity. Someone who is physically very unwell, even in the final stages of a terminal illness, can have full capacity to make a will if they understand what they are doing, know broadly what they own, and can weigh up who might reasonably expect to benefit. Illness that does not affect the mind does not affect capacity.

Capacity becomes a genuine question where the illness, or medication given to manage it, affects understanding, memory or awareness, for example in advanced dementia, delirium associated with serious infection, or heavy sedation. In those situations, taking the extra step of a formal capacity assessment close to the time of signing protects the will from later challenge.

Many solicitors offer urgent or same-day appointments for people who are seriously ill, including home, hospital or hospice visits. This is worth pursuing if there is any doubt about capacity, if the estate is more complex, or if time is genuinely limited and the family wants to be confident the will cannot later be questioned.

Hospital chaplains, ward staff or hospice teams can often help arrange practical matters such as finding independent witnesses or contacting a solicitor urgently, and many are experienced in supporting patients through this process sensitively.

The same rules under section 9 of the Wills Act 1837 apply wherever the will is signed. Two witnesses must be present together when the person signs, and both witnesses must then sign in that person's presence too. Hospital staff, visitors, or other patients can act as witnesses provided they are independent adults and not beneficiaries.

It can help to use witnesses who are not close family, since family members are often also beneficiaries and would lose their gift under section 15 of the Wills Act 1837 if they witnessed the will. See our guide on how to witness a will for the full detail on who is suitable.

If a person's condition is deteriorating quickly, focus first on getting a basic, clearly worded will signed correctly, even if it is not the most detailed document possible. A simple will that appoints an executor and states who inherits the estate is far better than no will, or a more elaborate one that is never finished or signed in time.

It is entirely possible to make a further, more detailed will later if the person's condition stabilises. What cannot be fixed after death is a will that was never validly signed at all.

Where illness is serious, it helps to keep a simple record of the circumstances around signing, for example a note of the date, who was present, and confirmation that the person appeared to understand what they were doing, even if a formal medical capacity assessment is not arranged. This is not a legal requirement, but it can be valuable evidence if questions are ever raised later.

If a solicitor is involved, they will typically keep a detailed attendance note of the meeting for exactly this reason. This is one of the practical advantages of using a solicitor in these circumstances rather than a purely online process.

If someone recovers from an illness that prompted an urgent will, it is worth revisiting the will once things have settled to check it still reflects their wishes and covers everything properly, rather than assuming the urgent version was necessarily complete. An urgent will made under pressure is a safety net, not always the final word.

See our guide on how to change a will if updates are needed, and our guide on when to update your will for the wider list of moments worth reviewing your arrangements.