Preparing a will for a client with a terminal diagnosis calls for speed, precision and sensitivity. When drafting wills for terminally ill clients, practitioners must ensure the will meets the formalities of the Wills Act 1837, confirm testamentary capacity in line with Banks v Goodfellow, and minimise the risk of future challenge. This article brings together the key legal and practical points for practitioners.
Capacity and the Golden Rule
The Banks v Goodfellow test requires the client to: understand they are making a will and its effect; understand, in broad terms, the nature and extent of their property; and appreciate the claims of those who might expect to benefit, free from any mental disorder that distorts decision‑making.
Clients nearing the end of life may experience fluctuating capacity due to their condition or medication (for example infection, delirium or severe fatigue). When drafting wills for terminally ill clients, build your approach around the client’s best times:
- Arrange meetings and execution when the client is most alert (often mornings). Be ready to act at short notice if a “lucid interval” occurs.
- Use plain language. Break decisions into small steps. Allow rest breaks. Read back key provisions to confirm understanding.
- Keep detailed attendance notes using the client’s own words. Record the timing of your assessment and any observed fluctuations..
Best practice for elderly or seriously ill clients is to follow the Golden Rule (Kenward v Adams) by seeking a medical opinion on capacity. Where delay to secure medical attendance would risk the client dying or losing capacity:
- Proceed without delay if you are satisfied capacity is present, documenting why medical attendance was impracticable and why urgency justified proceeding.
- Make full attendance notes in the client’s own words and consider, with consent, a short audio or video record to evidence understanding.
Execution Formalities When Drafting Wills for Terminally ill Clients
Section 9 Wills Act 1837 requires a will to be in writing, signed by the testator (or by another person in their presence and at their direction) with the intention of giving it effect, and witnessed by two witnesses present together who then attest and sign.
A beneficiary (or their spouse/civil partner) must not witness; any gift to such a witness is void. Hospital or hospice staff may witness, although many are unwilling; check willingness in advance and, if necessary, bring independent witnesses with you.
Remote witnessing came to an end on 31 January 2024; witnesses must be physically present.
If eyesight is limited, have the will read over carefully and note this in the attestation. If the client cannot sign, arrange for a signature by another at the client’s direction in their presence, or for the client to make a mark, and tailor the attestation clause accordingly. Consider large‑print copies, interpreters or other reasonable adjustments where needed.
When Wishes Are Uncertain: Using a Discretionary Trust
Where the client is unsure about how to balance competing priorities (for example, a new partner and adult children from a previous relationship) or time is too short to fix precise shares, a discretionary trust can provide flexibility. All or part of the estate can pass to trustees to distribute among a defined class (e.g. spouse/partner, children, step‑children) at their discretion:
- Use a clear, non‑binding letter of wishes to guide the trustees on priorities and factors to weigh.
- Appoint at least one independent trustee. This can help manage family dynamics and enhance credibility of future decisions.
- Make sure the client understands that a letter of wishes guides but does not bind the trustees. Avoid using a trust simply to “mask” an exclusion.
When Wishes Are Certain: Keep It Simple
Where instructions are settled, simplicity reduces delay and error:
- A long list of chattels gifts increases complexity and the risk of omissions. Consider a general gift of personal chattels for executors or a trusted beneficiary to distribute, supported by a short letter of wishes if time permits.
- Given likely imminence of death, complex substitutional gifts are rarely necessary. One sensible layer of substitution is often enough.
- Name a small number of reliable executors. If close family are unlikely to want to act, consider a professional executor.
Reducing the Risk of Disputes
When drafting wills for terminally ill clients, challenges frequently arise around capacity, undue influence and lack of knowledge and approval. Reduce risk by:
- Taking instructions privately. Do not allow a potential beneficiary to dominate meetings or answer for the client. Note that attorneys cannot instruct for a will on behalf of the testator.
- Exploring and recording the client’s reasons, especially where there is a significant departure from a prior will or one person benefits markedly more than others.
- Keeping contemporaneous notes and, where proportionate, preparing a brief statement from the client explaining the key decisions in their own words.
- Ensuring the will is read over and understood at execution. Your attestation and file note should record this.
Practicalities for Urgent Visits
- Preparation: Take an attestation kit (including spare pens, suitable attestation clauses, large‑print version if needed) and two independent witnesses if staff cannot witness.
- Identification and paperwork: Verify identity where possible and record who was present, who read the will, and any adjustments made (e.g. reading over, mark, directed signature).
- Storage and copies: Arrange secure storage of the original and provide copies promptly. Where time allows, send a short post‑execution letter to the client restating key terms and reasons.
Conclusion
For terminal clients, particularly when drafting wills for terminally ill clients, the priority is to capture intentions accurately and without delay. By confirming capacity, observing section 9 formalities, and recording the reasons behind key decisions, you can deliver a will that reflects the client’s wishes and is robust against scrutiny at a critical moment. Clear notes, proportionate safeguards and practical planning make urgent instructions both achievable and defensible.
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