Wills: Mental Capacity
The question
To ask the Secretary of State for Justice, what assessment has been made as to the potential merits of introducing a mandatory requirement for adults with capacity to take out a will.
Answered by Sarah Sackman
It is a fundamental principle of the law of England and Wales that a person can give his or her property to any person of his or her choice on death by making a valid Will. This is known as testamentary freedom.
Where a person dies without a valid Will, the intestacy rules apply. These set a fixed statutory hierarchy of relatives who have the right to inherit an estate where there is no Will, with priority given to a surviving spouse or civil partner, followed by children and other descendants. Where the deceased has no blood relatives, their estate passes to the Crown.
The Law Commission recently conducted a comprehensive review of the Law of Wills making a series of recommendations. They did not as part of this landmark review recommend mandating adults with capacity to take out a Will. The Government will respond to its recommendations in due course, but I can confirm we have no plans to require individuals, where they have the requisite mental capacity, to make a Will.
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