October 2021, is free wills month, a month where people can make a will with the help of a solicitor at a discounted rate (or completely free of charge). Free wills month is a necessary campaign. At the last count, only 60% of the UK adult population had made a will. Identifying why people do and do not make wills might be one fundamental way to address the deficit in will making in the U.K. and further add to the free wills month campaign.
In my PhD research, I have explored how people with dementia and their informal carers are affected by and make legal decisions such as wills. I interviewed 20 people with dementia and their informal carer(s), usually a family member.
- Age ranging between mid 50’s-late 80’s
- White (British, Irish or European)
- Working or Middle class
- Most interviewees were married
Though my thesis focuses on people with dementia and their informal carers, I do not only talk about this group when discussing my findings because most interviewees had made a will pre-diagnosis. Interviewees who had decided not to make a will did not cite dementia as an influencing factor.
Wills can be made by any adult in England and Wales, so long as they are shown to have testamentary capacity. In general terms, to have testamentary capacity, a person must know what a will is, what they have in their estate, and who might expect to inherit from them. When a person with a mental disability makes a will, they must prove that their mental disability has not affected their capacity to make their decision. There is also a ‘golden rule‘ of wills, which says that when a ‘seriously ill or aged’ person makes a will, the solicitor should refer to a clinician’s capacity assessment.
In 2005 the Mental Capacity Act (MCA) was introduced, which has the specific principle that age discrimination is not a reason to question a person’s capacity. The MCA principles continue to identify the presence of a mental disability as a justified reason to question a person’s mental capacity. The MCA addresses the issue of ageism but not ableism. Notably, during the wills review carried out by the law commission, solicitors said that the MCA should not replace requirements for testamentary capacity.
What does all this mean for people making wills?
It can be more difficult to make a will if you have a mental disability/disease/or difference. Legally, this is one easily identifiable barrier to being able to make a will. However, throughout my interviews, people discussed different reasons why they would and would not make a will. The presence of a disability was not mentioned. People with dementia rarely identify their illness as a barrier to legal decisions. Instead, they would cite money, understanding, and how useful the document might be.
Why people do make wills
Money and family. People make wills because they wish to protect and bequeath their money to their loved ones. Generally, the wealthier the participant, the more likely they were to have made a will.
‘At that time, we got the business… we’ve got the house, et cetera, and we’ve got a substantial amount of money at that time then…we were reasonably well off…[so] we decided to take advantage of the will writing service.’Beth, carer for her husband with Dementia
People also cited getting married as a reason to make wills, particularly when participants had children. They referenced it as being an expectation after marriage that they make a will. They were following their parent’s example when doing this.
On why making a will was important one interviewee says
‘That baton was passed on to me from my father…when we had young children it was about who was going to look after them.’Edmund, interviewee with dementia
Interviewees show how making wills is often about managing finances, and/or making sure that loved ones are provided for after death (either financially or by other means).
Why people don’t make wills
Lack of wealth. People with fewer assets or savings did not see the point of making a will, or simply don’t know why making a will might be important for them.
Asked why they didn’t feel like making a will was relevant for them, this interviewee says
‘I think if there was, you know, properties involved and things like that, if there was, you know a few bank accounts…with lots of money in I think that would it would be different.’Mary, carer for her husband with dementia
A will can be used for much more than just financial protection; it can detail funeral wishes, care wishes for children under 18, formalise small gifts, and show families how much they mean to the deceased. Importantly, a will can save loved ones some difficulties in leaving an estate intestate (i.e. an estate left with no will).
‘We’ve got three kids and as far as I’m concerned, everything goes to them. But I do worry because I don’t know. I’m just assuming that that is what would happen.’Sonia, carer for her husband with dementia
A will can protect a person’s choices after they have died. It can give a person a sense of control over what may happen after they have died. It can aid a person in the preparation and acceptance of their inevitable death. Wills are a valuable tool for all. We need to change the common idea that talking about death and planning for death is morbid and distasteful. Free wills month works to address this issue, but broader change is needed. It is evident from this data that people do not perceive or understand, or are not aware of, the full extent of the importance of will-making.
This interviewee illustrates using a metaphor how law can feel inaccessible:
‘It’s like somebody who, say for argument’s sake, cooking and what have you, if I said to him [her husband], go and cook a roast dinner, he wouldn’t have a clue what to do. They [lawyers] know what they’re on about. But as a layman, you don’t know.’Lina, carer for her husband with dementia
Public awareness-raising is needed around why wills can be helpful. Perhaps it is time we move away from the idea that wills are only beneficial for the wealthy.
How can a will be made?
All wills must be seen to meet the legal criteria, i.e., they must be made by an adult who is deemed to have capacity when the will was made and the will was not made with any undue influence from any person or potential beneficiary.
- At home – A will can be made without legal assistance and still be upheld by law. For ‘DIY’ wills to be legal, the testator needs to detail their wishes, sign and date the document, and have two witnesses who are not beneficiaries sign and confirm the testator’s capacity. Mistakes in the witnessing of a home will can make that document invalid, so care needs to be taken with DIY wills.
- By a professional will-maker – A professional will-maker will charge for their services; prices can range from roughly £80 to £600. Professional will makers have completed specific training and may be ex-solicitors. They will assist in drawing up the will, assessing the specifics of a person’s estate, and offer support and assistance drawing up more complex wills (such as trust wills).
- By a solicitor* – Solicitors are legal actors much like professional will makers, but they are also qualified to assist in other types of legal decision making. They will also charge for their services and again the cost of a will ranges between about £80 to £600. They can draw up wills of different kinds, assess the extent of a person’s estate, and advise on the best type of will for their client.
*In my research, I observed a solicitor and their clients making wills. I observed how solicitors find it difficult to explicitly assess capacity. I also saw how solicitors assumed that support from someone other than a person’s spouse might increase potential claims of undue influence (making the will invalid). My observations also demonstrated how a solicitor’s legal expertise is very useful, especially when someone is unclear about what counts as part of their estate, or what they can leave in their will.