Drafting a will is a fundamental aspect of financial planning, yet it often gets overlooked due to its perceived complexity or the discomfort associated with discussing one’s mortality. However, a well-crafted will is critical as it ensures that upon one’s demise, their assets and possessions are distributed according to their wishes, eliminating potential disputes and ensuring the financial security of their loved ones. Additionally, a will also allows individuals to appoint guardians for their children and make provisions for any dependents or charitable causes they may support.
Along with drafting a will, it is equally important to regularly review and update it as life circumstances change. This could include marriage, divorce, birth of children or grandchildren, acquisition of new assets, or changes in personal relationships. Failing to update a will can lead to unintended consequences and may result in assets not being distributed as intended. Therefore, it is crucial to revisit your will periodically and make necessary changes to reflect your current wishes.
Testing the capacity of a person writing a will is of paramount importance. This ensures that the individual fully comprehends the nature and extent of their assets, their relationship with those who stand to inherit, and the legal implications of their decisions. It is a safeguarding measure to protect vulnerable individuals from undue influence or exploitation, ensuring that the will truly reflects their independent desires and intentions.
Moreover, it lends credibility to the document, potentially preventing future legal challenges that could arise if there are concerns about the testator’s mental lucidity at the time of drafting the will. Thus, confirming the mental capacity of a person writing a will is a crucial step in the estate planning process, ensuring the will’s validity and enforceability, and giving peace of mind to all involved parties.
Table of Contents
- The Importance of Writing a Will
- Protecting your loved ones and family
- What is a Testator?
- What is a Beneficiary?
- What is an Executor and what are their duties?
- Why might I need a Mental Capacity Assessment?
- What if I am found to lack capacity to make a Will?
The Importance of Writing a Will
If you die without writing a Will, your estate will be distributed according to the Intestacy Rules. This can take a lot of time and is not always straight forward. It also means that your estate will be distributed in a prescribed way amongst your nearest relatives, rather than you choosing who you want to leave your assets to.
Protecting your loved ones and family
Many people feel strongly that leaving a loved one a proportion of their estate in a Will is a good way of providing financial security for them. Some people also choose to leave a proportion of their estate to charity. If you do not make a Will, you will not have any say as to who benefits from your estate or how much each person will receive. Your estate would be distributed according to intestacy law.
What is a Testator?
A person who makes a Will is called a Testator. For a Will to be legal binding, the Will must be signed, and witnessed by two people who must be present. A witness must be over the age of 18 and cannot be a beneficiary of the Will. Once signed and dated, the Will becomes legally valid.
What is a Beneficiary?
A Beneficiary is a person that benefits from the Testator’s estate. This could include assets such as property, savings, insurance policies and personal chattels.
Naming beneficiaries in your Will can give you peace of mind that your wishes (in respect of the division of your estate) will be carried out.
What is an Executor and what are their duties?
The Executor of a Will is appointed by the Testator to administrate their Last Will and Testament when they die. It is the Executor’s job to carry out the instructions set out in the Will and to manage all of the deceased person’s affairs.
The Executor will value the person’s estate after their death and be responsible for distributing the estate to the named beneficiaries. They will also be responsible for ensuring all taxes are paid on the estate. An executor cannot act if they have a criminal record or have been made bankrupt.
Why might I need a Mental Capacity Assessment?
Sometimes, after a person dies, their Will could be challenged, for example, by a close family member who is not included in the Will. The family member may think that they have a claim on the person’s estate. One of the grounds for a challenge to a Will could be the assertion that when the person made the Will, they did not have mental capacity to do so, thus rendering the Will invalid.
If you are intentionally excluding an individual from your Will and you are worried about your Will being challenged after you die, you may choose to have a mental capacity assessment. This would be completed at the time of making your Will. If you are found to have capacity to make a Will, a report detailing the assessment can sit alongside your Will to evidence that, at the time of making your Will, you had mental capacity to do so.
This can be particularly useful for people who may have a diagnosis of cognitive impairment such as dementia, brain injury, cognitive difficulties after a stroke, learning disability or mental health diagnoses, meaning that a challenge may be more likely. Even if you do not have a cognitive impairment but you think that a challenge to your Will may be likely, perhaps due to difficult family circumstances, a mental capacity assessment can be helpful to decrease the likelihood of a challenge being brought on the grounds of mental incapacity.
What if I am found to lack capacity to make a Will?
It is possible that the outcome of a mental capacity assessment is that a person does not have capacity to make a Will. Prior to arriving at this conclusion, all possible ways of supporting the person to make the decision for themselves should have been tried. If a person lacks capacity to make a Will, it is still possible for a Will to be put in place and for their wishes to be taken into account. An application can be made to the Court of Protection for a Statutory Will where a Judge would consider all those who may have a claim to the person’s estate and also any previous Wills that may have been made, and the person’s current expressed wishes in relation to the distribution of their estate.
If you die without a will this is call intestate, your estate will be divided according to the standard rules known as intestacy law. When someone dies without a will the rules of intestacy law will be obeyed and will depend on what relatives are left behind after your death.
When someone dies without a will and administrator will be appointed to wind up their estate this is usually a close relative or next of kin.
TSF Assessments are frequently asked to assess a person’s testamentary capacity. The criteria for capacity is taken from the Mental Capacity Act (2005).
We understand that it is imperative to have an efficient service when assessing testamentary capacity. Our Testamentary Capacity Video Link assessments provide professional, quality reports that are produced in a timely fashion. Alternatively, read more about our Testamentary Capacity service here.
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