Witnessing a will in hospital?

[miimblemomble]

Linked to my other thread...

My PIL are updating their wills. MIL has Parkinson’s, and dementia. Her lucidity varies from day to day - hour to hour tbh. She can hold what seems like a normal conversation the she’ll come out with some completely random statement. She needs printing to do everything.

She’s currently in hospital, having become very dehydrated/ delerious and has both a lung and bladder infection. She’s better now, but her Parkinson’s has apparently advanced.

No one other than FIL has seen her, due to the Covid restrictions. The lawyer originally proposed that she could go to the hospital with FIL, talk MIL through the draft wills, and (hopefully) have her sign it. This is not now possible. The lawyer has said that FIL needs to take the will to MIL, explain and ask her to sign it - and get “someone” in the hospital to sign as the witness!

Is this right? Is the witness expected to confirm that MIL has capacity to sign? Or just to confirm that it’s her signing the will?

Confirm she has signed it. It sounds like the will wouldn’t stand up in court if someone was to contest it.

We were buying a property from a person who has recently gone into care. It became obvious that he had lost the capacity to deal with paperwork / dealing with estate agents. The family had to apply to the courts to get the go ahead to take it forward.

FIL does have POA but the lawyer has explained that this does not apply in the case of signing wills.

It's not a huge issue TBH, their estate is not big nor is it likely to be contested when one of other of them die. It just seemed to be a big ask of a nurse in the hospital - but maybe this happens all the time. The lawyer originally said that she would explain to MIL and assess at the time whether she had capacity, but she is leaving it to FIL now as only he is allowed to visit MIL.

Nurses are very reluctant to witness wills nowadays

From what you say she lacks the capacity to make a Will at all now. The solicitor shouldn't be wasting your FIL's money. By the sound of it she has a Will made when she had capacity which will stand.

I don't think hospital staff can witness wills anymore. At least that was my experience with a terminally ill relative two years ago now.

But anyone who is not benefiting can witness anyway. Solicitor could arrange, with family approval to have two members of staff to witness.

The issue is possibly capacity. I don't know.

If their estate is under 270k and the will just leaves it to her husband just leave the will and let it be an intestate. the will wouldn’t be valid IMO as her capacity is so unreliable.

Hospital employees aren't going to witness a will. The trust will have a policy which explicitly says they can't.

Plus this solicitor seems to be playing very fast and loose with her testamentary capacity - has he even met her?

FIL getting her to sign it is not adequate at all. The solicitor needs to know for themself that she has the capacity to sign - this may involve paying for a specialist medical opinion.

Dodgy.

No way would any staff and the hospital do this, in fact if you are seen doing this it would raise safeguarding concerns, you need to wait until your Mum is out of hospital and then see if she has the capacity or not to make this decision , this is not the place for Will paperwork! And the solicitor wouldn’t be able to do it either (and they know this) especially if your Mum has fluctuating capacity.

Sorry just seen MIL not Mum

Her lucidity varies from day to day - hour to hour tbh.
She doesn't have capacity.

@Thisismytimetoshine

Her lucidity varies from day to day - hour to hour tbh. She doesn't have capacity.

She may have testamentary capacity on her good moments to understand and sign her will if is her instructions. But the solicitor needs to establish that and asking FIL (a beneficiary) to talk her through it and ask a random health professional to witness it whilst she's in hospital is dodgy. The fact she's in hospital and noted to have episodes where she isn't lucid lends credibility to description of it not being valid. If someone challenges it. Nurses do not like to witness this type of thing.

With agreement they do usually allow solicitor visitors at times to arrange and witness wills in hospices or on a ward where someone has no will and it is part of EOL planning, but that would be an exception. All very difficult during coronavirus period.

The golden rule is that if there’s any doubt about capacity, the Will writer or solicitor should obtain a written opinion by a doctor, ideally the testator’s Own GP.

Then instructions must be taken directly from the testator, the draft must be produced for approval, and then the hard copy produced to the testator for signature.

If the Will writer didn’t take instructions in the first place, they certainly should walk the client through the will before asking them to sign.

This all sounds very sloppy tbh.

It could easily be contested afterward, it would be impossible to prove it was signed during a period of lucidity.
Why is it so imperative that she signs the will now? Sounds quite distasteful, your FIL lining up lawyers willing to visit her in hospital.
Unless she's not expected to leave?

I genuinely think it’s down to them trying to push on while the Covid restrictions make everything so difficult - there isn’t anything dodgy about the changes they want to make and FIL is far from being a schemer - see my other thread ;-) FIL tried in the past to get MIL to look at updating their wills, and organising funeral plans etc but she just blanked him and refused to talk about anything connected with death or getting older. And now it’s probably too late. It was a battle to get her to agree POA as well, I’m so glad that DH pushed for that to be done.

The original plan was for the lawyer to go with my FIL and explain it all to MIL in person. This cannot happen thanks to Covid. We don’t yet know whether MIL will come home from hospital. All of us only have FILs word for it how compos mentis she is, it’s very hard to judge from a phone call.

FIL has signed his new will. MILs is being put in hold until we know whether she’s coming home or not. If she does, the lawyer will visit and explain / assess then. She does have an existing will which, while not ideal, can stand as it is until it’s more appropriate to consider.

Thanks for all the input!

If all the beneficiaries agree, would an alternative be for them all to jointly do a deed of variation on the existing will?