Red Flags in the Hospital Room: Why Waiting to Sign Your Will Is a Bad Idea

Red Flags in the Hospital Room: Why Waiting to Sign Your Will Is a Bad Idea

By Melinda Gustafson Gervasi

December 5, 2025

Lawyers, we are often the Grinch in a room.  Skeptical, a bit jaded because we’ve seen a lot.  Fisk Season Three, Episode 3 (I’m The Fisk) illustrates this trait, which I personally admit to having as well.  While we may be a killjoy, we are also sometimes correct.  And that benefits our clients. 

In “I’m the Fisk” we see the return of the character Malcolm. The former restaurant employee at a neighboring business, he is now a client.  His father recently died, and shortly before his death, he re-did his will.  Malcolm shares this information with Helen, oblivious to the red-flags screaming at Helen.  Six months prior to his death he met and fell in love with his carer (caregiver here in the US) and re-did his will to cut out his only child, leaving his entire estate to his new found love.

“Did they really? Gosh that’s good timing” Helen offers with a slight eye role. Following her instinct, Helen digs deeper into the issue.  While her approach may not meet US standards for attorney ethics, her focus on “testamentary capacity” is revealing.  Testamentary capacity is the legal and mental ability required for a person to execute a valid will. Essentially, it is the threshold of sound mind a testator (the person making the will) must possess at the time the will is signed. While the exact phrasing and burden of proof can vary slightly between jurisdictions (like between US states or countries), the generally accepted legal standard requires the testator to understand four key elements:

1. The nature and extent of their property. This means they must know, or be capable of knowing, what assets they own (e.g., house, bank accounts, investments).
2. The natural objects of their bounty. This refers to understanding who their closest family members and loved ones are, such as spouses, children, or other individuals who would naturally be expected to inherit from them. 
3. The purpose of the document they are signing. They must understand that the document is a will and that it will dispose of their property after their death. 
4. The manner in which the property is being distributed. They must be able to hold these three elements together long enough to form a rational plan for the distribution of their assets.

Spoiler alert, based on medications administered on the day the new will was signed, it seems highly unlikely the dad had capacity.  A hunch confirmed with a recorded Zoom call he made that day with Malcom. A lesson to take away from this episode is to do your best to avoid drafting a will while you are in the hospital.  Even if you know your intentions, medications may limit your capacity or give the appearance that you lack capacity.  If you’ve been meaning to update your will or draft one for the first time, put it on your to-do list and complete it while you are healthy and not facing limitations due to medical treatment.

Fisk, Season 3, Episode 3 "I'm The Fisk"

Thanks for reading!  A blog is not a lawyer; it is meant to foster thought and reflection.  Always seek counsel from an attorney licensed in your home state.  If you found this post helpful, consider posting it on your favorite social media platform.  Be well!