Who is able to make a Will?
In the UK you must be at least 18 years of age and have full testamentary capacity to be able to make a Will. The only exception to the age of 18, is the power for persons on active military service to be able to make a Will under this age.
What is Testamentary Capacity?
Testamentary Capacity is the legal term used to describe a person’s legal and mental ability to make a new Will or to make changes to an existing Will.
The test for capacity to execute a legally valid Will is that the person making the Will must be able to:
- Understand the nature of making a Will and its effects
- Understand the extent of the property of which they are disposing
- Be able to comprehend and appreciate the claims to which they ought to give effect
- Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of property by their Will
Most people will not need to be concerned about mental capacity, but it is important to bear in mind that if you are looking to make a Will you must be able to understand that if you want to make a Will to satisfy the test for capacity, you must be able to understand:
- That you are making a Will
- The effect of making your Will
- Approximately what makes up your Estate (such as property, bank accounts, personal effects)
- Who you should consider as a Beneficiary and whether you are including them or a person who may consider that they have interest in your Estate from your Will.
To satisfy the test for capacity, you must have the necessary understanding, as mentioned above, on the day that you make your Will. If you are suffering from a condition that affects your mind (such as Alzheimer’s or Dementia) it may be that you require additional assistance to show that you understand that you are making a Will, such as a letter from your Doctor.
What if I have Assets abroad or am not from the UK?
With any foreign element to your Will, you may need specialist advice. This could be due to owning foreign assets or property in another country, not being domiciled in the UK, Executors or persons named within your Will who live in another country.
The above does not prevent you from making a legally valid Will in the UK, however advice will need to be sought as it is possible that rules in the other country may need to be considered, together with further legal issues to be able to complete your Will.
How do I sign my Will?
Your Will is not legally valid until it is signed and witnessed correctly.
There is a strict set of rules surrounding the signing and witnessing of your Will, to include the rules when the Testator (person making the Will) and witnesses are present and in line with recent legislation, when Wills are signed digitally.
Additional factors need to be considered if the person making the Will is blind or unable to read. For example, it is possible for someone to assist the Testator by reading them the contents of the Will before they complete the signing. The signing can be a signature of just a mark made by the Testator.
Whenever creating a Will, it is extremely important to protect against the challenge of undue influence or duress. This is particularly important when dealing with a vulnerable client such as someone who is unable to read, or someone who is suffering with an impairment of the mind.
If you would like advice on making a Will please contact us today on 01279 295047 or complete our online enquiry form.