A brain injury leads to many challenges in life. We often find that various assumptions are made, both by those with a brain injury and by their families and loved ones, especially around what can and cannot be done from a legal point of view.
This article focuses on some of the questions we commonly come across in relation to making a Will.
Is it possible to make a Will when you have a brain injury?
It very much depends on the injury and the impact that it has had.
To make a Will you have to have testamentary capacity. Testamentary capacity is a very complicated area of law and is judged on a case by case basis.
In very simple terms, if a person understands the nature of making a Will and its effects, understands the extent of their estate, can appreciate any claims of those who might expect to benefit from their estate and, they do not have an illness which influences them to make bequests they would not otherwise have made, they are deemed to have the capacity to make a Will.
Having a brain injury does not automatically mean that a person does not have testamentary capacity and this will be judged on a case by case basis. It is not always easy to determine if someone has testamentary capacity and, in these instances, it is essential to ask a medical practitioner for their professional view.
How important is a medical opinion? Is it going to cost me a lot?
A Will can be challenged if the person who made it did not have testamentary capacity at the time and this could lead to the Will being declared invalid. A challenge would only be made once the person had died. If this happened, historic medical records would have to be used to determine capacity and it is much more difficult than just meeting a person of course. As well as this, any challenge against a Will can be incredibly expensive.
If there is any doubt as to testamentary capacity a medical opinion is essential and unfortunately this is likely to increase the cost. It does however; give you the best reassurance that your wishes will be carried out.
What sort of things would I need to consider when making my Will?
You should consider the following:
- Who will act as your executors (the people who will deal with your estate)
- Who will you appoint as Guardians for any infant children
- Whether you would like to leave any legacies (ie specific gifts of either money or items)
- Who you will leave any legacies to and what will happen to that legacy if that person dies before you
- Who you will like to inherit the remainder of your estate and in what shares
- What will happen to those shares if any of your beneficiaries pass away before you
- Whether or not you should use any trusts to protect beneficiaries
- Any funeral wishes.
Why can’t I buy a £50 DIY Will kit?
There are plenty of ‘Will kits’ in shops and online however, these services do not offer any advice.
Making a Will is a complicated process and, unless you take proper legal advice from a qualified person, the document you end up with might not be fit for purpose.
The problem with Wills is that you only find out that a Will is not fit for purpose once the person who made it has died. It is then usually too late to achieve what they actually wanted.
We deal with a lot of matters when a cheap DIY Will has led to very expensive litigation or simply costs a fortune to ‘unravel’ and this costs a lot more than simply getting it done properly in the first place.
What can be done if I don’t have the capacity to make a Will myself?
If you don’t have capacity to make a Will it might be possible for someone to make an application on your behalf to the Court for a Statutory Will. This is a complicated process but is an avenue that can be explored should a Will be required, but the person in question lacks the capacity to make it themselves.
Produced by Christine Thornley, Partner at Irwin Mitchell Solicitors
Christine Thornley is a partner at Irwin Mitchell and heads up the Tax, Trusts and Estate team in the Manchester office. Her role involves advising families, business owners and high net worth individuals on all aspects of succession and asset protection planning, including: Wills, Inheritance Tax, Administration of Estates, Trusts, Probate, Powers of Attorney and Court of Protection matters.
How can Brain Injury Group help?
Brain Injury Group is a network of approved personal injury solicitors with brain injury expertise. Moreover, our member firms have the complex injury experience to get the best possible rehabilitation and compensation for brain injuries.
Brain injury rehabilitation is important; to us, to our members, to you and towards getting the best outcome. We can help get you that best outcome. Get in touch to find out more from our brain injury experts.
