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Can I make a will?

We have all been told at one point or another that we should make a Will, but do we really know whether this is necessary?

What is a Will?

A Will is a legal document which you create to specify what you want to happen to your assets when you die. This includes money in savings, bank accounts or investments, as well as personal belongings, pets and property.

What if I don’t make a Will?

In the absence of a Will, there are a set of rules which dictate how our estate will be distributed: the Intestacy Rules. This may not be what you intended and it is important to make sure that your assets go to the people or organisations that you wish to benefit after you have gone. This is particularly important if you have received a large compensation payment and have a larger estate to consider.

The Intestacy Rules are quite old and out of touch with the “modern day” family and may not reflect your wishes. For example, these rules do not automatically recognise cohabiting partners, so the “common law” spouse does not have any automatic right to inheritance. Similarly, step-children are not recognised under these rules. The rules also prioritise your spouse or civil partner. This means that any children from a previous relationship may not receive anything from your estate.

These people may be able to bring a claim against your estate, but this is not guaranteed and would involve legal fees, stress and heartache for your loved ones.

What are the benefits of making a Will?

The benefits of making a Will are many: –

  • It provides certainty in the event of your death, painting a clear picture of your wishes for those left behind;
  • It allows you to choose executors who can manage and deal with your estate on your behalf, ensuring that everyone receives what you have specified;
  • You can make specific gifts to specific people. For example, leaving a personal or sentimental item, or a vehicle or piece of jewellery to a particular person;
  • You can appoint guardians for any children you have under the age of 18;
  • You can specific your funeral wishes. These can be as simple or as complex as you like and can save a lot of time and worry for your family;
  • Your Will can be structured in a tax efficient way. This can therefore provide good tax planning for your estate;
  • Most importantly: You can choose who you want to benefit from your estate and also, who you do not want to benefit. You can include friends or charities who may have supported you in the past.

Can I make a Will if I have had a brain injury?

In order to make a Will you need to have sufficient mental capacity.

Mental capacity can be fluctuating and it is important to note that this should be relevant to the decision you are making, and the time you are making it.

Just because you have had a brain injury, does not mean you cannot make a Will. Even if you are under a Deputyship or have an Attorney to support you, you may still be able to make a Will. This is because the test for mental capacity to make a Will is different from other tests of mental capacity. If you understand what a Will is and its consequences, who you ought to consider when making a Will and you have a good idea of the extent of your estate, you may be able to make a Will.

Is it difficult to make a Will?

It is not an intimidating process to make a Will with a professional. It also shouldn’t be very expensive as many legal professionals offer fixed fees for this type of work.

The process will vary between organisations, but typically involves an initial meeting to discuss your wishes, a draft document for you to approve and then a final meeting to complete and sign your Will. A legal professional will be able to offer guidance and support throughout the process so that you can have peace of mind knowing that everything will be taken care of.

Article written by Tonina Ashby of Tollers LLP

Tonia Ashby is Head of Elderly and Vulnerable Client Unit at Brain Injury Group member firm Tollers LLP.
Tollers LLP serve clients nationwide and have offices in Corby, Milton Keynes, Northampton and Stevenage.

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