Writing a Will for a person with a learning disability – guidance notes

This fact sheet is intended as a basic guide to assist the family, friends and carers of a person/people with a learning disability if they wish to make a Will. 

There are questions a person will be asked to check their mental capacity before making a Will. They must be able to:

• Understand what they are doing and why – they are directing what happens after they die.
• Understand why making a Will is important and to decide who gets what after you die.

The person must understand why they are leaving certain gifts to certain people. Can they understand the difference between family and friends? Can they justify why one person would receive a gift over another person?

A legal professional is the most appropriate person to decide whether a person has the mental capacity to make a Will. If they feel it is necessary, they can consult a medical practitioner for their opinion on a person’s mental capacity.

If a person with a learning disability wishes to make a Will, their first step should be to go and see a legal professional who has experience in this area. A legal professional should be able to talk through with them the choices of how a person may leave their assets and suggest the best way of doing so.

It is possible that a person may be unable to manage their property and affairs (and perhaps has a Receiver or Deputy appointed by the Court of Protection to deal with their financial affairs) but they may still have capacity to make a Will (known as testamentary capacity). The test is different. In those circumstances a medical statement would need to be obtained, and the Court of Protection notified.

Whilst the test for testamentary capacity is ultimately a legal one, not a medical one, the Court will look at the evidence of medical experts. A legal professional should be able to meet with the individual and assess their capacity and in many cases, it will be obvious that they do or do not have capacity. If in doubt a statement should be obtained from a medical practitioner.

Even if a person has a disability that prevents them from signing, such as they cannot read or write, or they are blind, they can have the Will read over to them and as long as they understand they can either sign by their mark, or someone else can sign for them.

If it becomes apparent that the person does not have the necessary capacity to make a Will there is a procedure for drawing up a Will on their behalf through the Court of Protection if the person has sufficient assets. An application can be made to the Court of Protection for what is known as a ‘Statutory Will’ for them. The Statutory Will can be made in any form and the person’s wishes may be considered. Information about this should be obtained directly from the Office of the Public Guardian on 0300 456 0300.

Some common reasons for making a Will (or an application for a Statutory Will), are:

• If they do not make a Will they will die ‘intestate’. This means that the law states who receives what from the person’s estate. For example, if a couple are unmarried, then one person’s estate will not pass to the survivor of them but will instead pass to the deceased’s children if they have any, or if none, their parents or extended family. This is often not what the person would want.
• Depending on the value of the person’s estate it is also preferable to prepare a Will for tax reasons. It is possible to reduce inheritance tax payable on a person’s estate through simple tax planning through a Will.
• The person may wish to leave their assets to someone who is in receipt of means tested benefits or who is unable, by way of their own disabilities, to manage the assets. In these circumstances it is possible to leave the assets in a certain type of trust. Money held in this way does not automatically belong to the individual, and therefore cannot be considered when calculating any benefits. It also means that the funds are managed by persons who are capable of doing so, and who will be able to make voluntary payments to the beneficiary for extras.