The death of a parent, no matter how old you are, is never easy to accept. If you recently lost your mother, you are undoubtedly dealing with the grief that follows such a loss. At the same time, you may be forced to address some of the practical and legal issues that follow a death as well. Among the most important of those is probating your mother’s estate. Typically, probate is initiated by submitting the decedent’s Will to the appropriate court. If your mother attempted to make a deathbed Will, however, you may not know how to proceed. Below we will explain the legal status of a deathbed Will.
What is a Deathbed Will?
Most of the time a Last Will and Testament is created months or years prior to the Testator’s death which allows considerable thought and contemplation to go into the making of the Will. A Will is also typically executed at the office of an attorney in the presence of disinterested witnesses. Adhering to these formalities helps to discourage challenges to the Will during the probate process. Sometimes though, things don’t happen that way. Instead, a “deathbed” Will is made just prior to death.
As the name implies, a death bed Will refers to a Will that is written down and executed (or spoken in the case of an oral Will) when the Testator knows that death is imminent. It may be that the Testator simply put off creating a Will and a deathbed Will serves as the only Will ever created by the Testator or a deathbed Will may attempt to revoke a previously executed Will. In either case, a deathbed Will is is likely to trigger a challenge given the circumstances under which it was created. If the deathbed Will revokes a previous Will you can almost count on it being contested because the deathbed Will is likely to disinherit someone unexpectedly and/or add in a previously unnamed beneficiary.
Is My Mother’s Deathbed Will Valid?
If your mother made a deathbed Will just before she passed away, the laws of the State of California will determine the validity of that Will. In California, for a Will to be legal the Testator must be at least 18 years old and of sound mind, the Will must be in writing, signed by the Testator, and witnessed by two disinterested witnesses. A handwritten, or “holographic” Will can be valid in California if the signature and “material provisions” of the Will are in the handwriting of the person making the Will. California does not, however, recognize oral (formally referred to as “nuncupative”) Wills though.
If your mother attempted to make an oral Will, it is invalid on its face in California. If she made a handwritten Will, it could be valid if it meets the requirements. Even if the Will does meet the technical requirements, however, the issue with a deathbed Will often focuses on the circumstances under which the Will was executed. In California, any Will may be declared invalid if any of the following grounds can be proven:
- Lack of testamentary capacity
- Undue influence
In the case of a deathbed Will, the most likely grounds used to contest the Will are lack of testamentary capacity and undue influence. To invalid a Will based on lack of testamentary capacity a contestant must show that at the time the Will was executed the Testator did not have the necessary mental capacity to understand the decisions she was making. In the context of a Will contest, the capacity necessary to create a valid Will is not as strict as that needed to enter into a contract. Invalidating a Will based on undue influence requires a contestant to show that someone exerted an improper influence on the Testator during the drafting of the Will.
If you are concerned about the validity of your mother’s deathbed Will it is important to discuss the specific the facts and circumstances surrounding the execution of the Will with an experienced probate attorney who can help you decide if the Will in question is likely to be upheld or not.
Please download our FREE estate planning checklist. If you have additional questions or concerns about the validity of a deathbed Will, or you need assistance probating an estate, contact us at the Northern California Center for Estate Planning & Elder Law by calling (916)-437-3500 or by filling out our online contact form.