Physicians: think twice before witnessing a will
CMAJ 1997;157:863
© Canadian Medical Association
Almost 30 years ago, 2 doctors practicing at a military hospital in Halifax acted as witnesses for the signing of a will. This probably seemed an appropriate thing to do at the time, since the patient was extremely ill and wanted to ensure that his last wishes would be carried out. In fact, the man made a full recovery and died only a few months ago.
Following his death, the lawyer representing his widow tried to locate the witnesses. It wasn't an easy job. With help from the Medical Society of Nova Scotia, he finally learned that one of the physicians is now practising in New Brunswick, while the other doctor's whereabouts remain a mystery. Faced with the task of contacting the New Brunswick doctor and arranging for him to visit a probate court to confirm that he served as a witness to the 1969 will is clearly frustrating to the lawyer involved. He wasn't even sure if this could be done in New Brunswick, or would require a trip to Nova Scotia. Regardless, the doctor involved would face considerable inconvenience.
The lawyer said physicians should be discouraged from witnessing wills: in most cases a lawyer should execute the document and assume responsibility for providing witnesses. There are several pitfalls inherent in witnessing patients' wills. These include the possibility of becoming involved in a court case should a will be contested. Doctors are often asked to provide a medical opinion on the mental status of a patient at the time a will is completed, but this is an ethical and legal obligation that cannot be avoided. However, physicians who are asked to witness a will should consider several points: the possibility they will relocate, the availability of more appropriate witnesses and the potential legal ramifications.
In Halifax, the Queen Elizabeth II Health Science Centre has instituted a policy that states hospital personnel are not permitted to witness documents generated outside the hospital that are not related to patient care, such as deeds and wills. The hospital's legal counsel, Nancy Milford, says it is inappropriate for hospital staff to become involved. The decision followed experiences in which such documents proved to be a problem for both hospitals and the physicians involved.
The hospital does acknowledge that there will be times when no other option is available, and it has appointed commissioners of oath for this purpose. The province's lawyers have been notified of the policy. For physicians, the best advice is that a wise doctor will think twice before agreeing to witness legal documents that are irrelevant to patient care. Such action may save them and their patients unneeded grief. -- © Dorothy Grant, coordinator, patientphysician relations, Medical Society of Nova Scotia.
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