WRITING A WILL - A COMPLETE GUIDE

Who can make a will?

Basically anyone over the age of 18.

A person under the age of 18 cannot generally make a will. However, if you are under the age of 18 and in Her Majesty's armed forces on active service, then you will be able to make a will which will stand as a valid one.

You also need to be "a person of sound mind"

Obviously a person must be of sound mind and capable of managing his or her affairs when signing a will. However, if after making your will, through illness or an accident, you become unsound of mind the will remains valid. If you make a will after you have become mentally incapable, and that condition has been medically diagnosed, then your will can successfully be challenged and an earlier will used if one exists. If not, then the rules of intestacy apply. Under Section 96 1E of the Mental Health Act, if a judge is present then he or she is empowered to make a will on behalf of an incapable person.

The point at which a person becomes unsound of mind and then makes a will can be challenged in the Chancery Court and so, if challenging, it is important to be able to substantiate the condition medically.

The Mental Health Act defines a person suffering from severe subnormality as one who is in a state 'of incomplete development of mind which includes sub-normality of intelligence and is of such a nature or degree that the patient is incapable of living an independent life or of guarding himself against serious exploitation or will be so incapable of an age to do so'.

Your aunt arguing with the radio or your grandfather threatening to leave his estate to the budgie is not cause for challenging either will in court. In all probability they would not be seen as being of unsound mind but possibly suffering from a mild dose of eccentricity. On the other hand, if a person is so disorientated that they are uncertain where they are when in their own home and a doctor has noted this, then this coupled with an inability to live an independent life and look after himself or herself may be grounds to bring this act into force.

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