When someone is reaching the end of their life, one of the most pressing concerns is making sure their wishes are properly recorded and respected. It’s not uncommon for people to decide to change or write a Will when they are terminally ill. Sometimes this is because of a new relationship, a family falling out, or simply a desire to update outdated provisions.

But what happens if those changes are made at the last minute? Are last-minute Wills more likely to be contested in court? And what can you do to make sure your Will — whether made years in advance or during a final illness — remains legally valid and less vulnerable to challenge?

In this article, we’ll explore the risks, the safeguards, and the practical steps you can take if you or a loved one is writing or changing a Will when terminally ill.

Why People Make or Change a Will When Terminally Ill

Facing a terminal diagnosis can shift priorities very quickly. Some common reasons for making or changing a Will when terminally ill include:

Updating family circumstances – such as divorce, remarriage, or the arrival of grandchildren.
Correcting an outdated Will – for example, where beneficiaries have died or moved away.
Recognising a new partner or carer – ensuring someone close who has provided care or companionship is properly acknowledged.
Tax planning – adjusting the estate to be more efficient from an Inheritance Tax perspective.
Ensuring fairness – perhaps giving more to children who have provided care, or balancing earlier lifetime gifts with inheritance provisions.

These are all valid and understandable reasons. However, the timing of such changes can sometimes raise suspicions or make the Will more vulnerable to challenges.

Are Last-Minute Wills More Likely to Be Contested?

In short: yes, they often are.

That doesn’t mean they are automatically invalid, but they are more open to legal challenge. The main reasons include:

1. Concerns About Mental Capacity

To make a valid Will, the person must understand what they are doing, the extent of their assets, and who might reasonably expect to benefit. If a Will is made very close to death, especially if the person is heavily medicated or weak, questions can be raised about whether they truly had the mental capacity required.

2. Undue Influence Allegations

Families sometimes argue that the terminally ill person was pressured, manipulated, or coerced into making changes. This is particularly common if a new beneficiary suddenly appears in a Will — for example, a new partner, carer, or friend.

3. Suspicion of Unfairness

Even without evidence of coercion, dramatic last-minute changes — such as disinheriting children in favour of one individual — can spark disputes. Grieving families often find it hard to accept sudden shifts in inheritance.

4. Lack of Proper Formalities

A rushed Will may not always be properly executed. For a Will to be valid, it must be signed before two independent witnesses. Mistakes here can render a Will invalid or give fuel to a contest.

Legal Grounds for Contesting a Will

In England and Wales, Wills can be challenged on several grounds, including:

Lack of testamentary capacity (mental capacity).
Undue influence or coercion.
Failure to comply with formalities (for example, incorrect witnessing).
Fraud or forgery.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 if a reasonable provision has not been made for certain dependants.

When a Will is written or changed during a terminal illness, the first two grounds — capacity and undue influence — are the most common.

Protecting the Validity of a Will Made When Terminally Ill

If you or a loved one is making or changing a Will during serious illness, there are important steps you can take to reduce the risk of dispute later. These include:

1. Obtain Medical Evidence

A letter from a GP or consultant confirming the person has capacity at the time of making the Will can be powerful evidence if the Will is later challenged.

2. Use an Experienced Solicitor

DIY Wills and online templates may not stand up to scrutiny, especially in delicate situations. A solicitor will ensure the correct formalities are followed and can keep detailed notes about the client’s wishes and understanding.

3. Avoid Involving Beneficiaries

It is best if the person making the Will (the testator) meets the solicitor privately. If a main beneficiary is seen to be involved in arranging the Will, it can fuel allegations of undue influence.

4. Consider a Statement of Wishes

Alongside the Will, the testator can leave a signed statement explaining their reasoning. While not legally binding, it provides helpful context if disputes arise.

5. Ensure Proper Witnessing

Witnesses should be independent adults who are not beneficiaries. Solicitors will usually arrange this to ensure validity.

6. Act Quickly but Carefully

While urgency is understandable, rushing through a poorly drafted Will may create more problems than it solves. A solicitor can help balance speed with security.

When It May Be Better to Update an Existing Will Instead

Sometimes, rather than drafting an entirely new Will, it may be more practical and less contentious to create a codicil — a legal document that amends an existing Will. A codicil can be used to make straightforward adjustments, such as:

Updating the name of an executor who is no longer able or willing to act.
Adding a new beneficiary, such as a recently born grandchild.
Increasing or reducing the value of a gift.
Making small changes to funeral wishes or personal items.

Because the main structure of the original Will remains intact, a codicil can feel less like a wholesale change and more like a natural update. This often reduces the perception among family members that someone has “swooped in” and caused a major last-minute overhaul.

However, it’s worth remembering that codicils must follow the same legal formalities as Wills: they must be signed and witnessed correctly. If multiple changes are needed or the estate is complex, a new Will may still be the safer option.

A solicitor will usually weigh up:

The scale of the changes needed — minor adjustments suit a codicil; major revisions call for a new Will.
The risk of confusion — too many codicils attached to one Will can cause complexity or conflict between documents.
The time available — codicils can be prepared quickly, which may be important when someone is terminally ill.

In sensitive circumstances, choosing a codicil over a full new Will can strike a balance: allowing someone to update their wishes without creating unnecessary suspicion or disruption.

Donatio Mortis Causa: An Alternative to a Last-Minute Will?

In some situations, people near the end of life may try to pass on assets outside of a formal Will through a donatio mortis causa (a “gift in contemplation of death”).

This is a rare and unusual legal concept in English law. For a donatio mortis causa to be valid, three strict conditions must be met:

The gift must be made in contemplation of death — The person giving the gift must genuinely believe their death is imminent (for example, due to a terminal illness or major operation).
The gift must be conditional on death — The transfer only takes effect if the person actually dies. If they survive or recover, the gift is revoked.
There must be delivery of the subject matter — The person must hand over the asset itself, or something symbolic of it (such as bank cards, house keys, or title deeds).

Why It’s Risky

Although a donatio mortis causa can transfer assets without a Will, it is often open to dispute. Family members may argue about whether the gift was genuinely intended or whether the conditions were met. For example, giving someone keys to a property may not be enough if there is doubt over the intention behind it.

Because of this uncertainty, courts tend to interpret donatio mortis causa narrowly, and many such claims fail. It is generally far safer to make a properly executed Will or codicil, even in urgent circumstances.

Real-Life Examples of Will Disputes

Case of sudden exclusion: A father disinherited two children just days before his death, leaving everything to a carer. The children successfully challenged the Will, arguing undue influence.
Capacity dispute: A terminally ill woman changed her Will in hospital while on strong pain medication. A nephew contested, claiming she lacked capacity. Medical records became central to the case.
Successful last-minute Will: In another case, a man updated his Will a month before his death to include a new grandchild. With solicitor involvement and medical evidence, the Will stood unchallenged.

These examples highlight the importance of careful preparation and professional guidance.

Why Professional Support Matters

holding hands in a hospital bed

Making a Will when terminally ill is an emotionally charged situation. But with the right professional support, it can still be done securely. At Burt Brill & Cardens, our solicitors are experienced in sensitive, time-pressured circumstances. We:

Provide home, hospital, or hospice visits if needed.
Liaise with medical professionals to ensure capacity is documented.
Keep clear records to protect against later disputes.
Guide families through potential challenges if a Will has already been made.

Our aim is to make sure your final wishes are respected and your loved ones avoid unnecessary conflict.

FAQs: Last-Minute Wills and Terminal Illness

1. Can you change a Will when terminally ill?

Yes, provided you still have mental capacity and follow the legal formalities. A solicitor can help ensure the changes are valid.

2. Is writing a Will when terminally ill valid?

Yes. Even if made shortly before death, a Will is valid as long as the person had capacity, was not under undue influence, and the formalities were met.

3. What if someone is too unwell to sign a Will?

If a person cannot physically sign, they can direct someone else to sign on their behalf, but this must be done in strict compliance with the law. A solicitor should always oversee this process.

4. Are handwritten Wills made in hospital valid?

They can be, but they are more likely to be challenged. Witnessing requirements still apply, and it’s best to involve a solicitor.

5. Can family members challenge a Will made during terminal illness?

Yes. They may argue a lack of capacity, undue influence, or that reasonable provision has not been made. Proper legal and medical safeguards reduce this risk.

6. Is it better to update an old Will or make a new one when terminally ill?

It depends. In some cases, a codicil (amendment) is sufficient and safer. In others, a new Will is needed. A solicitor can advise on the best route.

7. How quickly can a Will or codicil be prepared if someone is terminally ill?

With the help of a solicitor, a valid Will or codicil can often be prepared and signed within a few days — or even hours in emergencies. The priority is ensuring the person has

8. What happens if a last-minute Will is found invalid?

If the most recent Will is invalid, the estate usually falls back to the last valid Will. If there is no earlier Will, the estate is distributed under the intestacy rules, which may not reflect the person’s wishes.

9. Do codicils make a Will more likely to be challenged?

Not usually. In fact, a codicil may attract less suspicion than a brand-new Will, because it preserves the overall structure of the estate plan. However, multiple codicils can create confusion and potential conflict.

10. Can a video recording help prove a last-minute Will is valid?

A video can sometimes support evidence of capacity and intention, but it cannot replace the formal legal requirements of a written, signed, and witnessed Will. It should be seen only as supplementary evidence.

11. Is it possible to make an emergency “Deathbed Will”?

Yes, but it must still meet all the legal requirements. A hastily written note without witnesses is unlikely to stand as a valid Will. A solicitor can help ensure a “Deathbed Will” is executed properly to reduce the risk of later disputes.

12. Can carers or medical staff act as witnesses?

Legally, yes, carers or medical staff can act as witnesses to a Will. However, it is usually discouraged for several reasons. Witnesses must be completely independent, and ideally they should have no personal or financial interest in the Will. If a carer or member of hospital staff acts as a witness, it can raise questions later about whether they had any influence, particularly if they also stand to benefit from the Will or were closely involved in arranging it.

13. Should someone making a last-minute Will also review their powers of attorney?

Yes. If there is time, it can be wise to check or update Lasting Powers of Attorney alongside the Will. This ensures that both financial and health decisions are managed according to the person’s wishes.

14. Can electronic or digital wills be made in the UK?

At present, Wills in England and Wales must still be signed in writing and witnessed in person. There was a temporary provision for remote witnessing by video during the COVID-19 pandemic, but this is no longer in place. Electronic Wills are not yet legally recognised.

Ensuring Your Wishes Are Respected, Even in Difficult Times

Last-minute Wills are not automatically invalid, but they are more vulnerable to being contested. If you or someone close to you is changing a Will when terminally ill, the key is to proceed carefully, with professional advice and medical support where possible.

A well-drafted, properly witnessed Will — backed by clear evidence of capacity — can stand up in court and give peace of mind that your wishes will be followed.

If you or a loved one is considering making or changing a Will when terminally ill, the Wills, Trusts & Probate team at Burt Brill & Cardens can provide prompt, compassionate, and professional advice. Make an enquiry today at enquire@bbc-law.co.uk or call us on 01273 604123 for expert, confidential advice.

Last-Minute Wills: Are They More Likely to Be Contested?