Special wishes

Figures are consistently produced which indicate that around half of adults in the UK do not have a Will in place. There are a number of practical and sensible reasons why someone should have a Will to determine what happens to their assets on their death, including:

• the ability to choose executors is, that is, the person/s who gather in the assets of the estate and distribute to those entitled
• the ability to decide who should receive personal possessions such as jewellery or family heirlooms
• the ability to decide who should receive the person's assets such as their home, cash and investments
• the fact that if a person dies without leaving a Will, there assets will be distributed in accordance with a strict list of entitlement (known as the intestacy rules) which could omit persons whom the deceased would want to benefit from their estate.

A Will can also include practical directions such as a preference for a burial or cremation. The main advantage of having a Will is that the people left behind after someone has died knows what the deceased wanted.

A sad, recent case has also highlighted another issue which, if not included in a Will, could include significant heartache, expense and even a court case.

The case involved an urgent application to the Court of Protection which was brought in what the Court described as 'tragic circumstances' by the parents of a son who, at the time of the application, was lying unconscious in intensive care following a sudden collapse. The prognosis was such that there was virtually no prospect that he would recover and further that he would probably be assessed as being brainstem dead within the following 24-hours. The parents made an application for a declaration that it would be lawful for a doctor to retrieve their son's sperm in order that it might be used in the future for the conception and birth of a child.

The fact that the son lacked capacity to make the decision for himself and further would be unlikely to recover such capacity was not in dispute. The parents stated that their son had said for many years that he wanted children of his own and, somewhat tragically, that he had even kept his own toys to give to his own child one day. Crucially, there was no direct evidence as to the son's views and the court summarised the position as follows:

'It is one thing to have a consistent and heartfelt desire to be a living, caring father. It is quite another thing to wish to have one's sperm collected and stored when unconscious and dying, with a view to the possibility of the sperm being used for conception after one's death, and without having expressed any view when living about how the sperm should be used.'

The Court felt that the process of collecting sperm from an unconscious individual constituted an invasion of privacy and in the absence of any evidence of consent or intention from the son, the application was denied. 

The facts of this case are very unusual and will not arise that frequently. However, it does highlight the importance of considering more unusual wishes and requirements at the time a will is made. The case also involved a young man who was only aged 22 when he was incapacitated. It is fair to say that many people at this age would not be thinking about making a Will – but perhaps they should do so. The cost of having a professionally drawn Will is generally far less than most people would expect and can provide peace of mind.

To discuss this or any other private client matter, contact us.