Why make a will?

Brian Walsh, a member of Campbell Hooper solicitors and a specialist in Court of Protection work, wills, probate administration and charity issues, explains:

"A will is one of the most important documents most people ever sign yet, surprisingly, only three out of ten people have a will when they die. Whatever your circumstances, a will enables you to safeguard the security of your loved ones and to choose who handles your possessions after your death by acting as your executors.

Without a will, you cannot be certain your husband, wife or partner (if you are not married) will receive everything you would wish. By having a valid will you can set out your wishes clearly and include gifts for friends and favourite charities. Although you can make your own will, using a legal professional is money well spent when compared to the risk of leaving costly mistakes for your loved ones to sort out later.

Having discussed with you exactly what you would like to include in your will, your solicitor will draw up a draft document. Once you are happy with this you will need to sign it before two witnesses who are not allowed to benefit from your will. As well as keeping your will in a safe place, such as your solicitor's office, it is advisable to retain a copy yourself and to make sure your executors know where to find the original.

Anyone over 18 can make a will provided they have testamentary capacity. This means you must understand the consequences of making a will, and the size of your estate (everything you own). You must also show that you have considered everyone who may make a moral claim after your death if you do not include them in your will, although you are not obliged to leave them anything.

If you have mental health problems it may be advisable to ask your doctor to act as a witness to your will and keep a record of your state of health at the time. This would be a considerable help if your wishes were challenged after your death. If your doctor does not think you have testamentary capacity a formal application will need to be made to the Court of Protection for a statutory will to be made on your behalf.

Should the Court already manage your affairs but, in your opinion, you have testamentary capacity, it is advisable to inform the Court that you intend to make or change your will.

Provided you have testamentary capacity you can change your will at any time. Small changes can be made using a codicil, an additional document, which is signed and witnessed like a will. Larger changes may need a new will. You should never write on an original will or attach anything to it by staples or paperclips as this could make it invalid. At least every five years, or whenever there are major changes in your life such as moving house, marriage, divorce or children, you should check that your will still reflects your wishes.

If you wish to use your will to provide for a loved one who cannot manage their own finances it may be best to set up a trust. As a trust fund is not treated in the same way as a direct gift or legacy in your will, it is also a useful way of protecting entitlement to state care and benefits."

This article was first published in Openmind magazine, July/August 1998.