Free Wills Month in October is fast approaching! This bi-annual event gives those aged 55 and over the opportunity to have a simple Will written (or updated) free of charge by a participating solicitor. Clients are invited to consider leaving a legacy in their Will to one of many national charities that are part of the campaign.
A list of participating solicitors and charities is detailed on the Free Wills Month website.
Did you know that it is estimated that 60% of people in the UK do not have a valid Will in place? Considering the wealth in the UK, this is a very high percentage. It is recommended that you should think about updating your Will every five years or following a major change in your life such as acquisition of property or finance, birth, death and divorce. Some of the common reasons for delaying putting a Will in place are people thinking that they are “too young”, or that they don’t want to have to think about what might happen when they die. Family dynamics can be fraught with difficulty and this can make it tricky for a person to decide on how best to divide their assets. Those without immediate family can also find it difficult to make decisions about how to distribute their wealth. The cost of writing a Will can also be prohibitive, which is why Free Wills Month is such a good initiative!
Unfortunately, not all Wills are straightforward; a person’s family situation or their estate can both be quite complex matters. We would recommend that you instruct a Solicitor who is used to dealing with complex Testamentary issues to navigate you through the process of making a Will and who can advise on whether making a simple Will at no cost to you as part of Free Wills Month is adequate for your circumstances, or not.
It is important to be aware that, whilst you can instruct a Solicitor or Will-writer to draw up a Will for you (or indeed you can make your own Will) , Will-writing firms are not regulated by the Law Society. Making your own Will might save you professional fees now but if it is not properly considered or validated or there are any mistakes in the Will, the document could potentially be void when the time comes to execute it.
Making a Will is only one part of essential estate planning. When putting a Will in place, there may be other elements of your finances to consider, such as Trusts, pension schemes with nominated beneficiaries, or property and finances held abroad that required additional Wills in those countries. It is sensible to look at the larger picture and your wider finances when making a Will, to maximise and protect your assets in the best possible way.
Some of the aspects that need consideration when making a Will are:
- Inheritance Tax – the current threshold is £325k for a single person leaving their estate to someone other than a spouse.
- Intergenerational Inheritance Tax – where tax is compounded as the estate is passed down through generations.
- Remarrying- whether to include children from your first relationship or marriage in your Will.
- Divorce- where you may want to reconsider who your beneficiaries are.
- Insolvency/Bankruptcy – ensure that your beneficiaries still benefit if they are in an unstable financial situation.
- Care fees – leaving enough money for your partner after your death for long term care.
- Dependant children- nominating a legal guardian for any children that are still under the age of 18 at the time of writing your Will, to ensure that they are looked after if you die prematurely.
- Jointly owned properties held as Tenants in common- deciding who will inherit your share of the property and the effect on the other owner(s).
- Properties owned abroad- intestacy laws differ from country to country so you should check whether such properties can be included in your UK Will or whether you may need an additional Will in the country where your property is owned.
Whether your Will is relatively straightforward or indeed more complex, an assessment of capacity to make a Will may be necessary. TSF Assessments Ltd are regularly instructed by Solicitors and Will writers to complete an assessment of Testamentary capacity when a person approaches them to make a Will, either where the solicitor or Will writer is unsure as to whether the person making the Will understands all that is required, or to protect the person if it is likely that a challenge to their Will may be made after they are deceased. This “belt and braces” approach, where an assessment can sit alongside a Will to provide robust evidence of a person’s capacity, is advised by many solicitors.
Testamentary mental capacity assessments will consider whether the person understands what a Will is, the size of their estate, who might have a claim on their estate, and how they wish to distribute their estate. It is measured against the criteria from the case law of Banks v Goodfellow (1870).
If a person is found to have Testamentary capacity, then the Solicitor or Will writer can be confident in drawing up a Will and proceed with signing and witnessing the Will.
Sometimes, a person is found to lack capacity to make a Will. In this situation, their wishes in respect of distribution of their estate are really important and will be a key consideration of the Court of Protection if a Statutory Will is then applied for.
If it is decided that it is in the best interests of the person concerned to apply for a Statutory Will, TSF Assessments Ltd are highly skilled at completing COP3 Mental Capacity Assessments as part of this application, which would outline why the person did not have capacity to make a Will. In this circumstance, we would still use the legal test of Banks v Goodfellow but also set out the evidence in line with the Mental Capacity Act (2005) two stage test for capacity, explaining why the person was not able to understand, retain, use and weigh or communicate information relevant to making a Will.
At TSF, all of our highly skilled mental capacity assessors are registered and experienced health professionals such as doctors, nurses, social workers and occupational therapists.
An assessment of testamentary capacity can take on average between 40 to 90 minutes, depending on the person’s circumstances and any support needs. However, so that we can best support the person to make the decision at hand, we can facilitate breaks in the assessment process.
Some people are nervous that a mental capacity assessment is a test. Whilst the threshold for mental capacity is guided by the relevant information that a person needs to understand, retain and weigh in order to make a decision, and that they are able to communicate their decision, it is the assessor’s job to support the person to be able to make the decision. We view our assessments as a “conversation” rather than a “test” and we are creative and skilled in using various support tools to give the person the best possible chance of being able to make the decision at hand.
We support people to make decisions about their Will and document the evidence for this in a written assessment report, which can then sit alongside the person’s Will, should their capacity to make a Will at the time it was made ever be questioned in the future.
Once your Will is made, it is advisable to give a copy of your Will to your Executors and to store your Will safely. There are a few options you could choose from. Solicitors or Will writers may store your Will securely for a fee. You also have an option of registering with the Probate Service (England and Wales) who can store your Will for a fee which you can find on the .gov website. If you are advised to undertake an assessment of Testamentary capacity, we would advise that this is stored alongside your Will, so that in the event of a challenge it can be easily accessed.
It is possible to change a Will after someone dies as long as the beneficiaries agree. If there is no Will in place, then the law will decide who inherits and all changes will need to be actioned within 2 years. Sometimes a Deed of Variation or a Deed of Family Arrangement can be executed. This will allow beneficiaries to make changes to their own individual entitlement and can minimise their inheritance tax. It is commonly used when beneficiaries choose to move their inheritance to their children; the inheritance thereby skipping a generation.
A deed of variation is very useful in the following circumstances:
- If a will was written before other grandchildren were born
- If you would like your inheritance or part of it to go to charity
- If you would like your share of your inheritance to go to another party
- It can also be used to balance the distribution among the beneficiaries to be equal and fair and avoid inheritance tax disputes.
As experts in Testamentary capacity, we are frequently asked related questions about Testamentary capacity and more generally about Wills by our clients, such as:
Where can I go for advice about making a Will?
What about my wider finances?
Why do I need a testamentary capacity assessment?
Is my Testamentary capacity assessment robust?
What is the “Golden Rule”?
What does a “Belt and Braces” approach mean?
What is the case law for testamentary capacity assessments?
What is Banks v Goodfellow?
How does the Mental Capacity Act apply to testamentary capacity?
How will I be supported in a mental capacity assessment?
Can I have a family member to sit with me during the assessment?
Can you visit me at my home for the mental capacity assessment?
Can I have an online mental capacity assessment?
Is it a test?
What are the qualifications of a mental capacity assessor?
How will my Testamentary capacity assessment be documented?
How can I keep my Testamentary capacity assessment report safe?
Where should I store my Will?
Is it possible to change a Will after someone has died?
We hope that this article has been helpful in answering some of these interesting questions!
