Estate Planning #8: Deathbed Wills
It’s not uncommon that Will-makers leave it to the last minute. Wills made literally at the deathbed, or close to death, have their own particular problems. People close to death may be less able to give clear instructions. They may lack mental competence. Or, they may be mentally competent, but be affected by pain, medications, etc. Lawyers must exercise special care to establish and record that the Will-maker was mentally competent and had a clear understanding of the issues related to the Will. Sometimes the closeness of death results in the lawyer getting all the instructions, but by the time the Will is typed and ready for signing – the Will-maker has died.
This happened in the case of John Gibb: https://canlii.ca/t/jld9j. He had a heart attack, was rushed to hospital, and the next day asked for a lawyer to prepare his Will. Campbell River lawyer Kevin Simonett went right away. He knew Mr. Gibb. He took Mr. Gibb’s instructions, had a social worker at the hospital interview Mr. Gibb to verify his mental competence, and had a witness while he took Mr. Gibb’s instructions. Mr. Simonett spoke to Mr. Gibb’s attending doctor, who assured him Mr. Gibb was not being given any drugs that might interfere with mental capacity. Mr. Simonett questioned Mr. Gibb very thoroughly about his estate and his reasons for the terms of his Will, and verified Mr. Gibb understood it all. Mr. Simonett even used a special checklist from the BC Centre for Elder Advocacy and Support (www.seniorsfirst.ca) as part of his assessment of Mr. Gibb’s mental capacity.
Mr. Simonett drafted the Will and had it ready the day after he met with Mr. Gibb. But in the meantime, Mr. Gibb had been taken to a hospital in Victoria. Mr. Simonett drove to Victoria to get Mr. Gibb’s signature on the Will. Mr. Gibb was not able to deal with the Will that day due to his illness. Three days later, Mr. Simonett spoke to Mr. Gibb on the phone, confirming all the terms of the Will. They agreed Mr. Simonett would go to Victoria 3 days later, and get Mr. Gibb’s signature on the Will. Sadly, Mr. Gibb died while Mr. Simonett was driving to Victoria. So, there was no signed Will.
The court took less than a day to determine that the draft of the Will showed Mr. Gibb’s intentions. All the efforts and careful notes made by Mr. Simonett satisfied the court that Mr. Gibb was mentally competent, and understood all the terms of the Will. It ordered the estate to be distributed accordingly.
Such careful and thorough work should be the norm for estate lawyers. Regrettably, it isn’t. Kevin Simonett deserves huge respect. His work is a perfect example of how to deal with the “deathbed Will”. No doubt his thoroughness saved the estate significant money in a legal battle. And, most importantly: he ensured the Will-maker’s intentions were honoured.
If you are in Campbell River and need a Will prepared, we recommend Kevin Simonett: https://www.simonettlaw.com/about.html.
If you’re not in Campbell River, please come see us.
We’re giving Wills seminar by Zoom on 12 May. Sign up here: https://www.clearlaw.ca/register
