Making a will is one of those things most of us know we should do, but keep putting off. In later life, the reasons to stop delaying become more pressing, and the stakes feel higher. It’s not just about money. It’s about making sure the people you love are protected, that your wishes are clear, and that you have not left anyone to argue over what you would have wanted.
I work with families at some of the most difficult moments in their lives, and I see regularly what happens when good planning has not been done. Not always drama or dispute, but confusion, stress, and uncertainty at a time when everyone is already grieving. A little preparation makes an enormous difference.
Here’s what families in later life most need to know about wills, capacity, and planning ahead.
Why a Will Matters More in Later Life
A will is a legal document that sets out what should happen to your money, property, and possessions after you die. Without one, something called the intestacy rules kicks in, and those rules may not reflect your actual family situation at all.
Life is rarely tidy. Second relationships, stepchildren, estranged relatives, informal carers who have given years of their time, these are all people the intestacy rules were not designed with in mind. A will lets you make your intentions clear.
Later life also tends to bring changes that make an existing will out of date. A house move, an inheritance, going into care, a grandchild arriving, a relationship ending, any of these can mean that a will written ten years ago no longer reflects where you actually are now. Reviewing it regularly is just as important as writing it in the first place.
What Needs to Be Decided When Writing a Will
When someone sits down to make a will, the key decisions usually include:
- Who should inherit (money, property, personal belongings)
- Who will act as executor and manage the estate after death
- Whether any gifts should go to charity
- What happens if a named beneficiary dies before you do
For some families, there are extra layers to think through. Leaving a large sum directly to someone who receives means-tested benefits, for example, could affect their entitlements. In those situations, specialist legal and welfare benefits advice is often worth seeking before the will is finalised.
Where there are blended families, international property, or complicated assets, a solicitor with experience in wills and estate planning is usually the right starting point.
It’s also worth thinking about letters of wishes. These sit alongside a will and help executors and family members understand the thinking behind decisions, not just the decisions themselves. They are not legally binding, but they can be genuinely helpful.
Mental Capacity and Making a Valid Will
To make a valid will in England and Wales, a person must be 18 or over, must sign it voluntarily, and must have what the law calls “testamentary capacity.” This means they need to understand what a will is and what effect it has, have a reasonable grasp of what they own, understand who might reasonably expect to benefit from their estate, and not be affected by a mental disorder that distorts their decision-making.
One thing I always make clear to families: a diagnosis of dementia does not automatically mean someone lacks the capacity to make a will. The Mental Capacity Act 2005 is built on the principle that every adult must be assumed to have capacity unless there’s clear evidence otherwise. Capacity is also decision-specific and time-specific. Someone may lack capacity for complex financial decisions but still have full capacity to make or update their will, particularly with the right support, a calm environment, and enough time.
Where there’s genuine doubt, a formal testamentary capacity assessment from an appropriately qualified professional, such as an experienced independent social worker or a doctor, can provide clear, documented evidence that the person understood what they were deciding at the time they made it. This kind of evidence can be invaluable if anyone later questions the will’s validity.
If someone truly lacks capacity to make or change a will, the Court of Protection can authorise what’s known as a statutory will, using the best interests framework under the Mental Capacity Act to determine what it should say. In those situations, independent, well-evidenced capacity assessments and detailed background information about the person’s wishes, values, and relationships carry significant weight.
Talking With Family About Wills
Conversations about wills can feel loaded, especially when health is already a concern. Families often worry they will come across as money-focused, or that raising the subject will cause upset. In my experience, the families who have these conversations early, even imperfectly, tend to find them far less stressful than those who avoid them until a crisis forces the issue.
A few things that tend to help:
- Pick a calm moment, not during a difficult week or in the middle of a family argument
- Lead with reassurance, something like “I want to make sure things are simpler for everyone if something happens to me”
- Talk about values as well as assets, who should have certain meaningful possessions, who has been most involved in care, what matters most to the person
- Acknowledge that people may feel differently, and that it’s ultimately the will-maker’s decision to make
Some people find it easier to frame the conversation more broadly, as “planning ahead,” covering wills, Lasting Powers of Attorney, and care preferences together, rather than focusing on any one document in isolation.
How Wills Fit With Wider Care and Capacity Planning
Later life planning rarely comes in neat, separate boxes. Wills, Lasting Powers of Attorney, capacity assessments, care funding, and NHS Continuing Healthcare decisions often overlap in real family situations.
I see this regularly. Someone moving into residential care who also needs to think about property, benefits, and whether a property and financial affairs LPA is in place. A person with dementia who still has capacity for some decisions but not others, and needs careful, decision-specific assessments to support a will or a significant gift. Attorneys or deputies who need to demonstrate that decisions about financial arrangements are genuinely in the person’s best interests under the Mental Capacity Act.
A will works alongside a Lasting Power of Attorney, not instead of one. An LPA covers decisions made during a person’s lifetime if they lose capacity. A will only takes effect after death. Getting the two pieces in place, ideally before any doubt about capacity arises, is one of the most protective things a family can do.
When Independent Social Work Support May Help
There are situations where an independent social work assessment adds real value beyond what a solicitor or GP alone can provide.
Difficult family dynamics, concerns about pressure or undue influence, or questions about whether someone genuinely has the capacity to make or change a will are all areas where independent assessment matters. I can assess decision-specific capacity, provide clear written evidence, and help families and legal professionals understand what support a person needs to make their own choices, wherever that’s possible.
In more complex situations, such as a Court of Protection application for a statutory will or a deputyship, an independent social work report gives the court a fuller picture of the person’s daily life, relationships, and expressed wishes. That human detail matters. It stops the process feeling like paperwork happening at a distance from the actual person at the centre of it.
A Careful Note
This post is general information for families in England and Wales and does not replace legal, financial, or medical advice. Individual situations, especially those involving inheritance tax, benefits, property disputes, or family conflict, are often more complex than they first appear. A qualified solicitor, financial adviser, or regulated professional should always be involved where those issues arise.
If you are worried about whether someone has the capacity to make a will, or if there are concerns about pressure, undue influence, or a will that has already been made, please do get in touch. I am happy to have an initial conversation about whether an independent assessment might help.
Questions Families Often Ask About Wills and Capacity
Does having dementia mean someone cannot make a will?
Not necessarily. The Mental Capacity Act 2005 states that every adult must be assumed to have capacity unless there is clear evidence to the contrary. Many people with early or moderate dementia still have the capacity to make a valid will, particularly when they are given the right support, enough time, and a calm environment. Capacity is assessed for the specific decision at the time it is made, not based on a diagnosis alone.
What is testamentary capacity and who assesses it?
Testamentary capacity is the legal term for a person’s ability to make a valid will. To have it, they must understand what a will is and what it does, have a broad sense of what they own, know who might reasonably expect to benefit from their estate, and not be affected by a mental disorder that distorts their decision-making. A testamentary capacity assessment can be carried out by an appropriately qualified professional, such as an experienced independent social worker or a doctor, and the findings are set out in a written report.
What happens if someone lacks the capacity to make a will?
If a person genuinely lacks the capacity to make or change a will, the Court of Protection can authorise what is called a statutory will on their behalf. The court uses the best interests framework under the Mental Capacity Act to decide what the will should say, taking into account the person’s known wishes, values, and relationships. Independent evidence and detailed background information about the person are very important in these applications.
How is a will different from a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) allows a named person to make decisions on someone’s behalf during their lifetime if they lose capacity. A will only takes effect after death. The two documents serve different purposes and, ideally, should both be in place well before any concerns about capacity arise. Getting both sorted early is one of the most straightforward things a family can do to protect each other.
What is undue influence and why does it matter for wills?
Undue influence means that someone has been pressured or manipulated into making a will that does not reflect their genuine wishes. It can be difficult to spot, particularly in families where relationships are complicated or where one person has taken on a significant caring role. If there are concerns that a will was made under pressure, or that someone was not acting freely when they signed it, an independent capacity assessment can help establish what was actually happening at the time.
When should we think about reviewing an existing will?
A will should be reviewed whenever there is a significant change in circumstances. This includes house moves, going into care, the arrival of grandchildren, the breakdown of a relationship, an inheritance, or the death of a named beneficiary or executor. In later life, it is also worth reviewing a will if there have been any changes in health or cognition, to make sure it still reflects the person’s current wishes and that there is clear evidence of capacity at the time of any updates.
Can an independent social worker help if the family disagrees about a will?
Yes. Where there are difficult family dynamics, concerns about pressure or undue influence, or genuine disagreement about whether someone had the capacity to make a will, an independent social work assessment can provide clear, impartial evidence. That evidence can support solicitors, the Court of Protection, or other professionals in making well-informed decisions. It also helps to ensure the person at the centre of the situation is not lost in the legal process.
