Legal Bedside Manner

Ronald Lang, badly injured in a fire, was admitted to hospital. He asked the nursing staff to contact his solicitor, Frank Summerville, so he could make a Will.

Frank arrived at the hospital about four o’clock in the morning; was shown into the ICU, where Ronald gave instructions to Frank who wrote his Will. In this Will Ronald left his estate to Monica Walsh and appointed Monica and John Dodd as executors. Frank read the will to Ronald who stated when asked if it was accurate:

‘Yes that is one hundred percent, Frank.”

Ronald’s fingers were so swollen that he was unable to hold a pen; he had lost sight and bandages covered his eyes however despite his injuries he understood what he was doing or trying to do and had the mental capacity to make a Will. A nurse put a pad in front of Ronald, and tried to put the pen into his hand. Smudges were caused by his hand or bandages touching the paper, before Ronald became unconscious.

Frank certified at the end of the document that Ronald attempted to sign his will at 4.45 am after it was read to him and he had stated he was satisfied with its terms. Frank dated the document 22nd March 1987 and he and another witness executed it. Ronald died a few hours later as a result of his injuries.

The Court must be satisfied that the document was signed by the testator. It was argued that the writing of the will by the solicitor at the direction of the deceased constituted signature by the solicitor at the direction of the deceased because the deceased’s name was written by the solicitor. However the court did not accept this argument as any document prepared at the direction of a Will maker and acknowledged by him in the presence of witnesses would be considered to be a valid will. Although the Court accepted that the document was the Ronald’s last will, it had no discretion in the matter. At the time the legislation provided that in order to be a valid Will it must be established that the document was signed by the Will maker .

The Court was not satisfied that Ronald made either of those marks as part of his signature. On the balance of probability, the dot was made merely by pointing the testator’s hand with the pen in the direction of the paper, and that the other mark was made in effect by accident, as the testator’s arm moved away across the document presumably after exhaustion took over.

Ronald had made a previous Will, however it didn’t reflect his wishes at the time of his death. Ronald may have believed that he would have the opportunity to make a new Will but never got around to it – we can only speculate the reasons why. Importantly this situation illustrates that we must put plans in place for our our future today.

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