Who Can Make a Will?
To be entitled to make a will you must have valid testamentary capacity. This means that, in addition to being over the age of 18 (unless you are seaman at sea or you are in the armed forces and on active military service), you must be able to
- understand roughly what making a will means, i.e. the nature of the transaction you are entering into;
- be capable of having a rough idea of what you have to leave;
- be aware of those you have a moral obligation to benefit and those you are benefiting in the will; and
- understand in broad terms the effect of the will.
You may have testamentary capacity and be able to make a valid will even though you are of unsound mind and suffering from delusions in some respects, as long as that insanity does not affect the above points. For example, you may have good testamentary capacity even though you are convinced that the world is a cube.
Your will will not become invalid if you become totally insane or otherwise lose your testamentary capacity after making it, as long as you had testamentary capacity at the time you made it. Even if you are normally mentally incapable, you are legally able to make a valid will in any lucid period.
If you ask someone else, for example a solicitor, to prepare a will for you, the will will be valid if you had testamentary capacity at the time you gave the instruc tions for the preparation of the will, even if it is doubtful whether you had testamentary capacity at the time you signed the will, provided that at the time you signed the will you understood that it put into effect the instructions which you had given for the will.
If you do not have testamentary capacity the Public Guardianship Office can be asked to arrange for a judge having powers under the Mental Health Act 1983 to make a will for you provided that you are over the age of 18. Such a will is known as a statutory will and is to benefit those for whom you might be expected to benefit if you were not mentally disordered. Although an application for the making of a statutory will is expensive, it might be justified, especially if there have been major changes in tax laws or your financial or other circumstances since you lost your capacity, or made your previous will. The Power of the Guardianship Office to make a will includes power to revoke an existing will. The Public Guardianship Office can be contacted at Archway Tower, 2 Junction Road, London N19 5SZ, tel 0845 330 2900, fax 020 7664 7715.
If your will is rational on the face of it at the relevant time there will be a rebuttable presumption that you had full testamentary capacity when you made it. If your capacity is likely to be challenged it might be sensible to ask your doctor to examine you and to witness the will.
The fact that you are unable for physical or educational reasons to read or write or that you can only sign your name by making your mark does not prevent you from making your will; these difficulties can be dealt with in the wording of the will.
If you have the necessary mental capacity and are a member of the armed forces engaged in actual military service or are a seaman at sea, then notwithstanding the fact that you may be under the age of 18, you can make an informal will which will not be revoked by merely leaving the service or, in the case of a seaman, returning to land.
