Last Will and Testament : What You Need to Know
Many people put off making a Will when they are older, and that can bring with it some issues that could potentially prevent you from creating a valid Will. This article looks at the basics of what a Will is, as well as some Frequently Asked Questions you might have when it comes to making a Will as an older person.
1) Summary in 30 Seconds
- Many people put off having a Will made until their old age or when they get sick.
- A diagnosis of Dementia or Terminal illness can make it more complicated to get a Will made, but it is entirely possible to do it.
- If you write a Will when you have a Dementia diagnosis or when terminally ill, your family may be concerned that you aren’t able to make these kind of decisions. There are precautions you can take to make sure your Will is less likely to be contested after your death.
2) What is a Will and Do I Need One?
If you have waited until you are older to get a Will made, you are not alone. Recent statistics have shown that the majority of people in the U.K. wait until they are in their 50s and 60s before having a Will made. Of course, there are numerous reasons why this happens. You might not have thought you needed a Will until recently. Or perhaps you had a Will made in the past but now you want a new one. Whatever your situation or stage of life, having a Will made is a good idea.
If you are advancing in years, having a Will made may become more imperative. A Will contains your legally binding instructions for who is to inherit your estate after you die. If you die without a valid Will, your estate will be Intestate. You or your family won’t have any control over who inherits your money, possessions or assets. Rather, it will be distributed according to the Rules of Intestacy.
With a Will, you can:
- make specific gifts to family, friends and charities.
- You can arrange for the care of your pets.
- You can include your funeral plans.
Even if you think your estate is very small, it can still save your loved ones a lot of time and hassle if you make a valid Will. Dealing with an Intestate estate can be a much longer, drawn-out process. Dealing with the death of a family member and winding up their affairs is stressful enough without the added frustration of having to deal with lengthy court or Probate issues.
3) Making a Will with Dementia
If you or a loved one is in the early stages of Dementia or Alzheimer’s, creating a Will may not be easy. One of the legal requirements of a valid Will is that the Testator has the mental capacity to make it. In the context of making a Will, this means:
- They understand what a Will is, and what effect it will have.
- They know what the extent of their estate is – i.e., what they own or how much money they have.
- They can name who will be Beneficiaries in their Will, and can elaborate on why individuals might be included or excluded.
Even if you are already struggling with the effects of your diagnosis, it doesn’t mean you can’t effectively make a valid Will. There are just more precautions you need to consider.
As it is likely that your family members and friends will be aware of your diagnosis, this could leave your Will open to be challenged after your death. They could contest it on the grounds that you did not have mental capacity, or that your illness left you vulnerable to coercion or undue pressure from unscrupulous parties who want to influence your decisions. If it goes to court, they will need to prove this through any documents or records that could undermine your supposed mental capacity. What can be done to prevent this?
There is no way to entirely prevent a Will from being contested. But if you are making a Will with Dementia, there are some extra steps you can take.
- Don’t write it yourself – instruct a solicitor to write your Will. A solicitor will keep detailed records of your instructions and the information you provide you. They can act as an independent third-party who can assess your capacity and your ability to express your instructions for your Will.
- Have a medical assessment done. To help prevent future issues regarding your capacity at the time of writing your Will, consider having an independent medical assessment who can attest to your mental competence. Keep a physical copy of this report in a safe place.
- Write your own statement of wishes. If you have any lingering concerns, you can also write a personal statement in the form of a document or letter. While this document would not be legally binding as a valid Will would be, in it you can elaborate on the decisions you made in your Will. This could support your Will to show that you made your Will with requisite mental capacity and without undue influence.
- Talk to family members and loved ones. It is a good idea to make sure your family and loved ones know you are making a Will. If they have any questions or concerns about making a valid Will with your diagnosis, it can really help to talk things through and reassure them that you know what you’re doing.
If you or a family member has recently been diagnosed with a degenerative illness and they want to make a Will, time is of the essence. Don’t put it off any longer.
4) Making a Will When Terminally Ill
As with writing a Will with Dementia or Alzheimer’s, it is possible to write a valid Will while you or a loved one is terminally ill. Similarly, it is important to ensure that the Testator has the mental capacity required to write a Will. A person’s medical condition or medication could at times impair their ability to communicate their wishes. But this doesn’t necessarily mean they lack capacity entirely.
The same precautions need to be taken by instructing a solicitor who can keep good records of your instructions and, if necessary, having your mental capacity attested to by an independent medical professional.
Writing a Will in the late stages of an illness could be a cause for concern for your family, who may doubt your ability to make good decisions. This could especially be true if you decide to change or amend a Will in quite significant ways. Be aware that this could cause them to contest your Will after your death, perhaps citing concerns as to your mental state, or perhaps undue influence from another party. Talk to your family while you still can, to reassure them that you know what you’re doing. Make sure they know what your Will contains so there are no nasty surprises after you’ve passed.
5) Make Sure Your Will is Up-To-Date
There are lots of ways that your life may have changed since you wrote your Will or last reviewed it.
- You may have had children, grandchildren, nieces and nephews, etc.
- Beneficiaries in your Will may have died or no longer be in your life anymore
- You may have divorced, remarried or are in a long-term relationship
- You may have sold assets or possessions you listed as gifts in your Will.
- You may have bought a second home, or property in another country.
Can I use a template to write my Last Will and Testament?
There are lots of free or cheap templates online and it is entirely possible to write a valid Will using one of these. Keep in mind that they are usually beneficial for those who have very simple estates and do not need any legal advice or assistance.
What are the legal requirements for a valid Will?
(1) The Will is a physical paper document, (2) It is signed by the Testator (3) in the presence of two witnesses who (4) also sign the Will and (5) the Testator has mental capacity to make the Will and (6) is over 18 years old (with some exceptions).
Does the spouse inherit everything if a person dies without a Will?
Under the rules of Intestacy, the deceased’s spouse or civil partner will inherit the first £250,000 and all personal possessions. Anything exceeding that will be split equally between the spouse and any children of the deceased. Unmarried partners do not automatically inherit anything.