Nobody puts Baby in a corner

It is an absolute in the law of wills that a person must be over 18 to make a will.  Many would also add that a person must be of sound mind to make a will, but in the case of someone who has lost capacity it is possible for someone to apply to the Court of Protection to make a will on their behalf.  So even if you aren’t of sound mind, a will can be done for you.

The Law Commission is currently consulting on the law of wills and one of the issues they are looking at is the age at which someone can make a will.  Whilst you might think it isn’t an issue that comes up often, most of my clients who are making their first will are well into their forties (at least), when it does come up it is often of crucial importance to the people involved.

Take the case of JS, which was in the news last year.  JS was 14 and had terminal cancer.  She had done her research and wanted her body to be frozen after she died in the hope that she might be resuscitated and cured in the future.  Her mother supported her decision, but her father did not.  As she was not able to make a will, she was not able to appoint an executor who would then be in charge of putting her wishes into action.  To resolve the situation, JS decided to apply to court to have the matter settled before she died as any delay after she died would have meant her body could not be frozen.

Thankfully for JS the court order that her mother be appointed as the daughter’s administrator and the judge also issued an injunction to prevent the father from applying for a grant of probate.

A situation I come across in my work as a Court of Protection deputy is where children have suffered clinical negligence or been the victim of an accident and have had a large sum awarded to them in compensation.  These sums can often run into seven figures and so you can see how useful it would be for these children to be able to make a will.  Even if they do not have mental capacity, until they reach the age of 18 an application to make a will on their behalf cannot be made.

Whilst the Law Commission suggests lowering the age to 16, I would suggest that the law in England and Wales should match that of Scotland and lower the age to 12, because if a 12 year old is mature enough to think about putting a will in place (I know it would never have occurred to me – I was too busy climbing trees), they are going to have the maturity and intelligence to be able to understand the purpose and action of a will.

To discuss making a will, LPA or other related matter please do not hesitate to contact myself or the team.