How Old Should You Be to Make a Will?

25 January 2019

In England and Wales, need to be at least 18 years of age to make a Will. The only exceptions to this rule are soldiers on active duty or sailors at sea, who are legally entitled to make a Will regardless of their age. There is no maximum age limit to make a Will, but you need to have sufficient mental capacity at the time of making your Will to fully understand its implications.

The Exceptions to the Minimum Age Rule

Generally speaking, minors cannot make a Will. However, a law was introduced in 1918, which allows soldiers on active duty (including those in marine or naval forces) and sailors at sea to make a Will, even if they were not yet 18 years of age.

This is called a Privileged Will because the usual formalities do not need to be adhered to. This means that the Will does not need to be in writing, does not need to be signed or witnessed and the person making the Will can be under the age of 18.

This law was introduced near the end of World War 1, in recognition of the risk that these young people were facing while in active service. It was felt that these individuals should have the right to legally record their final wishes before going into dangerous situations.

What is the Right Age to Make a Will?

Making a Will is commonly perceived as something that should be done in older age, and that it's not an activity intended for the young. However, providing you're over the age of 18 and therefore legally entitled to make a Will, then there's no real reason why you should wait until old age.

Ultimately, no one can see into the future and an accident or illness can strike anyone at any time. That's why it's so important to make sure that you have these plans in place before it's too late. This is particularly true if you are a homeowner, own any significant assets or if you have children.

As a nation, we are very reluctant to talk about death, so making a Will is something that a lot of us put off for this reason. Last year, we carried out the nation's Biggest Ever Survey into Death, Dying and Bereavement. In this survey, almost three quarters of the adults that we spoke to said that they haven't made put a Will in place yet.

Who Can and Who Can't Make a Will

In order to make a Will, you need to have what's called 'testamentary capacity.' What this means in essence is that you need to fully understand the implications of what you are doing. This means that if someone has already lost mental capacity, either through an accident or because of a disease such as dementia, then it's too late for them to put a Will in place. This is why it's so important not to wait until it's too late.

In order to prove testamentary capacity, the person making the Will must meet the following criteria:

  1. Understand that the document being put in place will determine how their Estate is distributed when they die

  2. Understand and recollect the extent of their Estate – this doesn't need to include every single thing they own and its value, but there must be a general awareness of what's in their Estate

  3. Understand if there are any people who could have a moral claim on their Estate, regardless of whether that person is included as a Beneficiary in their Will

  4. Not be suffering from a disorder of the mind that shall "poison his affections, pervert his sense of right or prevent the exercise of his natural faculties" – in other words, the person must not be suffering from any condition that affects their ability to understand or make decisions.

Life's Milestones

So, as you can see, it's important that you make a Will while you still have testamentary capacity to do so and for this reason it's important not to continue putting it off until the last moment. It's also important to recognise important milestones in life when it's a good idea to review or update your Will. These include:

  • The birth of a child or grandchild – you may want to ensure that your Will adequately provides for the new arrival
  • Marriage – did you know that getting married automatically voids any existing Will you have in place?
  • Buying a new home – make sure that you have set out in your Will what should happen to the property on your death
  • Divorce – while divorce doesn't void your Will, it does impact on it, so make sure that your Will is still an accurate reflection of your wishes

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