Making a Will is extremely important for a number of reasons; chief among them is providing for your loved ones after you have gone. We believe that this process should be simple, as it can already be emotional and stressful to make a Will.
Unfortunately, making a Will can sometimes be complicated by a number of external factors, including illness. Here, we examine how illnesses can impact on the Will making process so you have the information you need.
Before we get going, it’s important to stress that whenever possible it is best to make a Will when in good health. You should also review your Will after any major change in your life – meaning that even if you have made a Will while healthy, it may be necessary to review it if you discover that you are ill.
“Burt Brill and Cardens are a firm that have served our family for many many years. They are approachable professional and thorough. We would have no hesitation in recommending them to anybody.”
Preparing your Will
When preparing a Will, you need to consider the complete range of possibilities and pitfalls before you. You should consider:
- The likely contents of your Will; how much money you possess, any property you own, any possessions you have.
- The likely inheritors of your Will; who do you want to benefit from your Will, and how can you best protect the share you want to give to them. This may be accomplished, for example, through trusts for young children.
- The likely guardians of children who depend on you; who should look after any children under eighteen years of age.
- The likely executor of your Will; who Will sort out the practicalities after you have gone, arrange the funeral and allow your Will to be implemented in line with your wishes.
- By making a Will you can decide what happens to your property and possessions in the event of your death. This makes it easier for your family by reducing the likelihood of painful and expensive conflict, and ensure you have a significant say in their future.
- If you die without a Will, your assets will be distributed according to the law rather than your wishes. A Will sets out who is to benefit from your property and possessions (your estate) after your death.
If you, or someone you know, discover a terminal illness, it is likely that it will be difficult to discuss plans around making a Will. It is, however, important that everyone involved is able to acknowledge the reality of the situation. The longer important decisions are put off, the more likely it is that there will be issues around the inheritance. Legal conflict can drain an entire family of their emotional and financial resources, and should be avoided wherever possible.
Equally, the people you care about should benefit from the inheritance you leave behind. If there are ambiguities, even if there is no direct conflict among relatives left behind, dying ‘intestate’ (without a Will) usually leads to your estate not being distributed as you would like. If you have no surviving relatives it may even result in the government collecting your entire estate. Remember that unmarried partners, close friends, relatives by marriage and carers cannot count as surviving relatives. A Will may also enable you to use some degree of tax planning to ensure that your heirs get a larger amount of your property and possessions or that assets are protected, for example setting up trusts for your children or grandchildren. Without such a Will, this does not happen.
Essentially, the advantage of making a Will while severely ill is that you gain back a degree of control during a period of time when it feels like control has been taken from you. You decide what happens to your money and possessions, while you protect the people and causes you care about most. This control extends to questions such as “Who will look after my children if they are under 18?”, “Will my partner be treated fairly even though we are not married?” or “How will my personal belongings be divided between my partner and my dependents?” Having an up-to-date Will allows you to have peace of mind that your wishes will be fulfilled.
Making a Will in hospital
The current guidance regarding making a Will in hospital from the NHS is “This should only be done in hospital if it essential to do so because of the likely death, peace of mind or general welfare of the patient.”
If you are incapable of contacting a solicitor, assistance and facilities will be provided by the NHS to help the solicitor visit. The visit will not, however, be funded by the NHS.
In an emergency, staff might assist you in making your Will, although there are conditions to this, as well. Staff will not assist you if they stand to personally benefit from the Will, or if the Trust itself stands to benefit from the Will (unless the patient’s solicitor has taken instructions and prepared the Will, and one of the witnesses is independent of the Trust).
Staff at the NHS may agree to witness a Will if they are asked, assuming that they are able to assess whether the patient is able to make a Will, understands what they are doing, and is not being coerced. If any doubt exists on any of these points, they will seek advice from a psychiatrist first.
Using a Solicitor
A Solicitor can ensure that your Will is structured effectively to meet your wishes, reducing cause for family disputes and giving you peace of mind. We can advise on issues around step-families, multiple properties, off-shore interests and businesses.
It is important to speak to a legal professional if you need advice for more complicated matters related to your illness. One of our solicitors will be able to visit you in your own home, care home or hospital.
We have many years of experience in guiding people through the process so that they sign a valid legally binding Will.