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By Kenneth Kirk
For Senior Voice 

The many dangers of the deathbed will

Legal issues


As an estate planner, there is one call I absolutely hate to get. It’s second only to hearing that a client has died, and in many ways worse.

It’s the message that somebody in the hospital needs a will done right away.

Why is that such a problem? Because deathbed wills (or trusts, or any kind of estate planning documents) are the worst kind. For one thing, the person’s competence may be slipping at that point. He or she may have had a stroke or other serious condition which could affect the ability to think clearly. Even if the reason for being there has nothing to do with the brain, the client may be on painkillers or other medications which may affect the thinking, or he or she may be in serious discomfort which can make it hard to focus.

That possible lack of competence means that if somebody is not going to be happy with this will, they have just been given an opening to litigate. Disgruntled heirs may want to fight over something in court, but they can’t do it effectively if they don’t have some way to get a foot in the door. The disinherited child may not like what the will does, but if it was done when the parent was still clearheaded and sitting in the attorney’s office, it is going to be hard, if not impossible, to get a judge to throw it out.

But lying in the hospital after a serious medical incident, in pain and with half a dozen medications flowing through the bloodstream, and probably a lack of sleep as well? It makes it a whole lot easier to fight.

And if the person’s condition is bad enough, I may not even be able to draft a will. As the estate planning attorney, I have an ethical responsibility to assure myself that this person is sufficiently able to understand the nature of what he or she is doing. If I am not comfortable doing that in a particular situation, I will have to refuse. That will disappoint a lot of people, including the patient.

On top of all that, mistakes are much more likely to happen in this situation. Under ordinary circumstances I like to set aside any significant legal document for at least a few days, so that when I come back to it my eyes will see what is actually on the page, not what my brain expected to be on the page. When I have to do things on a rush basis, I am more likely to miss something. And, if the client is not in the best frame of mind, he or she may miss errors, such as misspellings of names, that they otherwise would have caught.

Yet another consequence is that I may have to simplify the estate plan to deal with the circumstances. For example it can be very difficult for someone who is in a really bad way to deal with all the different documents necessary for something like a revocable living trust, so I may have to settle for a will when, under better circumstances, a trust would have served the client much better.

So if you don’t have your estate planning done, don’t wait until the last minute.

Kenneth Kirk is an attorney and estate planner working in Anchorage.


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