What is the difference between a Last Will and Testament and a Living Will?

Despite having relatively similar names, there are significant differences between a Living Will and a Last Will and Testament. Knowing what each of them do can mean the difference between your estate going to probate or being divided by intestacy laws. In this post, our probate services team explain the differences between the two.

Last Will and Testament

A Last Will and Testament is a legally binding document outlining how you would like all of your assets to be divided after you pass away. For a Will to be valid, several criteria must be filled:

• It must be in writing
• It must be written while you have the capacity to understand the implications of the decisions you are making (also known as ‘being of sound mind’)
• It cannot be written under any coercion
• You must be over 18 years old at the time of writing
• You must sign the Will and have your signature witnessed by two people. They must both be over 18, unrelated to you and not due to inherit from your Will. If a witness does stand to inherit from your Will, it will still be valid, but the witness removes any rights to any inheritance from your Will as a result
• Your witnesses must also sign the Will in your presence

There is no set date upon which your Will must be created and, if necessary, the document can be altered at a later time provided that any alterations come with new signatures and dates for authenticity. Please note that a Last Will and Testament can only come into effect upon your death, while you live it has no legal effect.

Many people try to write Wills themselves, but mistakes can easily invalidate the whole document, making it risky to do so. Our probate and Wills solicitors can guide you through the complex process of creating a Will that is valid and can be easily executed.

Living Will

A Living Will, now known as an Advance Directive, allows you to define which medical treatments you do not consent being used upon you in the case that you cannot make the decision yourself. This can be due to either your physical or mental health deteriorating past the point of capacity.

In England and Wales, Living Wills are legally binding provided that the following conditions are met:

• You must be 18 or older at the time of writing
• You must be of sound mind at the time of writing
• You must specify the treatments you wish to refuse. A general statement refusing treatment will not be followed
• You must specify the circumstances in which you refuse treatment, for example, if you have had a stroke or are suffering from dementia

If your Living Will contains a refusal of life-sustaining treatment, then it must also:

• Be in writing
• State that the Advance Directive applies even if your life is at risk or shortened as a result of refusing treatment
• Be signed both by yourself and by another witness

You can specify any medical treatment that you wish, and it does not need to be signed or endorsed by a solicitor to be valid. However, similar to a Will, it’s wise to seek legal assistance with writing them as they require very specific language to ensure your wishes are respected.

Talk to expert Will solicitors

At Romain Coleman, our team has years of experience in this field of law, and we can show you how to make a Will, whether it be a Last Will and Testament or a Living Will. Our experts will listen to your requests and translate them into a legally binding document.

To find out how we can help, call us on 0208 520 4555 or fill out our Online Form.

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