Disabled Person's Will: Special Considerations in the UK

Emma is 32, has cerebral palsy, and owns a £180,000 flat she bought with her inheritance. When she told her family she wanted to make a will, her mother asked: "Can you even do that? Don't you need a doctor's letter?"

Emma felt the familiar sting of being treated as incapable simply because she's disabled. She has a degree, a career, manages her own finances, and makes decisions about her life every day. Why would making a will be different?

Emma's experience reflects a widespread misconception: that disability automatically means incapacity. In reality, 16.8 million people in the UK are disabled—25% of the population. The vast majority have full mental capacity to make wills, manage their estates, and plan for their families' futures.

This guide explains your rights as a disabled person making a will in the UK, when capacity assessments are needed (and when they're not), how to protect means-tested benefits, and how to ensure your will is legally valid and respected.

Understanding Your Legal Right to Make a Will as a Disabled Person

Having a disability does not affect your legal right to make a will. You have the same rights as anyone else.

The Mental Capacity Act 2005 establishes a fundamental presumption: everyone is assumed to have capacity unless proven otherwise. This means you don't need to prove you're capable of making a will—others must prove you're incapable.

Testamentary capacity (the legal term for capacity to make a will) is decision-specific and time-specific. You only need capacity at the moment you sign your will. Having a disability, learning difficulty, or medical diagnosis does not automatically mean you lack capacity.

The test for testamentary capacity comes from the 1870 case Banks v Goodfellow, which remains the legal standard today. To have testamentary capacity, you must:

Understand the nature of making a will and its effects
Know roughly what you own (you don't need exact figures)
Understand who has claims on your estate (spouse, children, family)
Not be influenced by a mental disorder affecting your judgment

The Mental Capacity Act protects your right to make decisions others might consider unwise. Making an unconventional choice about who inherits doesn't prove incapacity—it proves autonomy.

With 25% of the UK population disabled, the vast majority have full testamentary capacity. Disability relates to how society is organized, not to your ability to make legal decisions about your estate.

When is a Capacity Assessment Actually Required?

Capacity is presumed—you don't need to prove it. Capacity assessment is only needed if there's genuine doubt about your ability to understand will-making.

Most disabled people never need capacity assessments. Physical disabilities, stable mental health conditions, learning disabilities where you understand will basics, and neurodivergence like autism or ADHD don't require assessment.

The "Golden Rule" recommends capacity assessments for elderly or seriously ill testators, where solicitors arrange professional evaluation and contemporaneous records. But this applies to age and acute illness—not disability in general.

Capacity assessment might be appropriate when:

You have a degenerative condition affecting cognition (advanced dementia, severe brain injury)
Your capacity fluctuates significantly (bad days versus good days)
You've recently received a diagnosis that affects judgment
You have a history of being unable to make other significant decisions

Assessment is conducted by a GP, psychiatrist, psychologist, or occupational therapist. The cost typically ranges from £200 to £500 for a formal testamentary capacity assessment. The assessment focuses on understanding, not memory recall.

James, 45, has multiple sclerosis affecting his mobility but not his cognition. He doesn't need a capacity assessment—his MS doesn't affect his ability to understand will-making.

Sarah, 78, has early-stage dementia with fluctuating awareness. Her solicitor recommends an assessment to protect the will's validity, creating a contemporaneous record of her understanding on a good day.

Important: This article provides general guidance on when capacity assessments may be appropriate. It does not replace professional medical or legal assessment. If you have any doubt about your capacity to make a will, consult a GP, solicitor, or capacity assessment specialist.

Testamentary Capacity Explained: What You Actually Need to Understand

The Banks v Goodfellow test from 1870 breaks down testamentary capacity into four elements. These are the criteria courts use to determine whether someone had capacity when making their will.

The four elements are:

Nature of the act: You understand you're making a will that takes effect after your death
Extent of property: You know roughly what you own—house, savings, investments (exact figures aren't required)
Potential beneficiaries: You understand who might expect to inherit, like your spouse, children, or family members
No disorder of mind: Mental disorder doesn't distort your judgment about who should inherit

Capacity is about understanding, not the wisdom of your choice. You can make decisions others consider "unfair" and still have full capacity. The law respects your autonomy to distribute your estate as you wish.

You only need capacity at the moment of execution—when you sign your will. Capacity can fluctuate, so timing matters. If you have good days and bad days, make your will during a period when your understanding is clear.

Memory lapses don't equal incapacity. You can have poor memory but still understand what a will does, what you own, and who your family members are.

Ask yourself these questions to assess your understanding:

Do I understand what a will does?
Do I know what I own?
Do I know who my close family members are?
Am I making these decisions freely, without pressure from others?

If you can answer yes to these questions, you likely have testamentary capacity. The bar is focused on basic understanding, not perfect memory or conventional decisions.

Learn more about what makes a will legally valid in the UK.

Protecting Means-Tested Benefits When You Inherit or Leave Inheritance

Inheritance can affect means-tested benefits like Universal Credit and Housing Benefit. Understanding capital limits and trust options protects you or your disabled loved ones from losing essential support.

Capital limits for means-tested benefits in 2025:

Under £6,000: No effect on benefits
£6,000 to £16,000: Benefits reduced by approximately £4.35 per month for every £250 over £6,000
Over £16,000: You lose Universal Credit, Housing Benefit, and Council Tax Support

These capital rules apply to Universal Credit and other means-tested benefits. Non-means-tested benefits like PIP, DLA, and Attendance Allowance are not affected by inheritance—they have no capital limits.

If you receive an inheritance directly, it counts as your capital immediately. If you're receiving means-tested benefits and inherit more than £16,000, you'll lose eligibility.

If you want to leave inheritance to another disabled person receiving means-tested benefits, use a disabled person's trust or discretionary trust. These trust structures prevent the inheritance from counting as the beneficiary's capital.

Disabled Person's Trust:

A disabled person's trust holds assets for a disabled beneficiary without counting as their personal capital. Trustees manage the funds for the disabled person's benefit, protecting their means-tested benefits indefinitely.

These trusts offer special tax treatment with lower rates and must have a principal disabled beneficiary. The disabled person must meet statutory definitions—receiving DLA, PIP, being registered blind, or being incapable of managing their own affairs.

Discretionary Trust:

Discretionary trusts offer more flexibility with multiple beneficiaries. Assets aren't owned by any beneficiary, so they don't count toward capital limits. However, these trusts face higher tax rates than disabled person's trusts.

Deliberate deprivation warning:

Giving away inheritance after you receive it to protect benefits is called deliberate deprivation. The DWP can treat you as still having the money, disqualifying you from benefits anyway.

The solution: have the trust set up in advance by the person making the will—not created after the inheritance is received.

David, 28, has Down's syndrome and receives Universal Credit of £368 per month. His grandmother leaves him £25,000 directly. He loses all Universal Credit because his capital exceeds £16,000.

If she'd left the money in a disabled person's trust, he would keep his benefits and still benefit from the trust funds through trustee distributions.

Benefits rules are complex and change frequently. This article reflects the position as of October 2025. For advice specific to your benefits situation, consult Citizens Advice, a benefits advisor, or the Department for Work and Pensions.

Choosing Between Disabled Person's Trust vs. Discretionary Trust

Both trust types protect means-tested benefits, but they differ in tax treatment, flexibility, and beneficiary structure. Understanding the differences helps you choose the right option.

Disabled Person's Trust (DPT):

Must have a principal disabled beneficiary (but can include others)
Limited distribution to others: lower of £3,000 or 3% of trust value per year
Tax advantages: income taxed at beneficiary's rate (usually nil or low)
No 10-year IHT charges or exit charges
Trust value aggregates with disabled person's estate on death for IHT
Requires disabled person to meet statutory definition

Discretionary Trust:

Multiple beneficiaries with equal status
Trustees have complete discretion over distributions
Income taxed at higher trust rates
IHT periodic charges every 10 years and exit charges
More flexibility if circumstances change
No requirement for beneficiary to be statutorily disabled

Feature	Disabled Person's Trust	Discretionary Trust
Primary beneficiary required	Yes (disabled person)	No (pool of beneficiaries)
Benefits protection	Yes	Yes
Income tax rate	Beneficiary's rate	Trust rates (higher)
IHT treatment	No periodic charges	10-year and exit charges
Flexibility	Limited	High
Best for	Clearly identified disabled beneficiary	Uncertain future needs

When to use a Disabled Person's Trust: You have a clearly identified disabled beneficiary, want tax efficiency, and expect long-term benefit needs.

When to use a Discretionary Trust: You have multiple potential beneficiaries, want maximum flexibility, or are uncertain which family member may need support in the future.

Both trusts protect benefits because assets belong to the trust, not the beneficiary. Payments made directly to the beneficiary could affect their benefits, so trustees must manage distributions carefully.

Trusts have complex tax implications and must be properly structured to protect benefits. This article provides an overview only. If you're considering leaving a substantial inheritance to a disabled person, consult a solicitor specializing in trust planning.

The Role of Lasting Power of Attorney Alongside Your Will

A lasting power of attorney (LPA) complements your will by protecting your interests during your lifetime. While your will addresses what happens after your death, an LPA covers decisions while you're alive.

Two types of LPA exist:

Property and Financial Affairs LPA: Manages money, property, bills, and pensions
Health and Welfare LPA: Covers medical treatment, care decisions, and life-sustaining treatment

Disabled people should consider LPAs when:

You have a progressive condition (MS, Parkinson's, dementia)
Your disease trajectory is uncertain
You want protection against future incapacity
You want to ensure a trusted person makes decisions if you lose capacity

You can only create an LPA while you have capacity. Once capacity is lost, it's too late. If you lose capacity without an LPA in place, your family must apply for Court of Protection deputyship, which costs £408 and takes 4-6 months.

LPA registration costs £82 per LPA currently (rising to £92 from November 17, 2025). You can apply for exemption or remission if you receive means-tested benefits.

An LPA protects your autonomy—you choose who decides if you can't. This is separate from will-making but complementary estate planning.

Lisa, 38, has relapsing-remitting MS. During remission, she creates a Property and Financial Affairs LPA naming her sister as attorney.

Two years later, during a severe relapse affecting her cognition, her sister manages bills and financial affairs seamlessly. No court application needed—Lisa's advance planning protected her interests.

Understanding when to update your will is equally important as your circumstances change.

What if You Lack Capacity to Make a Will? Statutory Wills Explained

If you genuinely lack testamentary capacity, you cannot make a valid will yourself. The Court of Protection can make a statutory will on your behalf.

A statutory will is created by the Court of Protection for someone who lacks capacity. Family members, deputies, or attorneys under an LPA (with court authorization) can apply.

When a statutory will is needed:

You've lost capacity due to accident, illness, or degenerative condition
You've never had capacity (severe learning disability from birth)
No will was made before capacity was lost

The application process:

Apply to Court of Protection
Provide medical evidence of incapacity
Explain why a statutory will is needed
Propose will terms (the court decides final content)

The court application costs £408, plus legal costs typically ranging from £3,000 to £4,000. The timeline is 6 to 12 months.

The court considers what the person would have wanted, including:

Previous statements or wishes
Personal values and beliefs
Interests of potential beneficiaries

A statutory will can be challenged like any other will. The process is expensive, slow, and uncertain.

Prevention is better: Make your will while you have capacity to avoid the need for a statutory will altogether.

Making Your Will Accessible: Practical Considerations for Disabled People

Traditional will-making creates physical and financial barriers that exclude many disabled people. Online will services remove many of these obstacles.

Physical accessibility barriers:

Mobility issues make multiple solicitor appointments difficult
Sensory disabilities require screen readers, large print, or British Sign Language
Chronic pain and fatigue make lengthy appointments exhausting
Geographic isolation limits access to solicitors in rural areas

How online will services help:

Make your will from home (no travel required)
Work at your own pace (pause and resume anytime)
Accessible technology (screen readers, voice control)
No pressure from in-person meetings
15 minutes versus multiple appointments

WUHLD accessibility features:

Plain English guidance throughout the process
Preview your will before paying (no financial risk)
Responsive design works on any device
No time pressure (save and return anytime)
£49.99 versus £650+ solicitor fees

Signing requirements for physical disabilities:

If you can't physically sign your will, someone else can sign on your behalf in your presence and at your direction. Witnesses must see the signing occur. A mark or thumbprint is acceptable if you can't write a signature.

Learn more about proper will signing requirements to ensure your will is legally valid.

You can have someone help explain terms as long as you understand and make your own decisions. Communication support doesn't invalidate your will—it ensures you comprehend what you're signing.

Online will services remove physical and financial barriers that prevent disabled people from making wills. Accessibility isn't a luxury—it's a right.

Ensuring Your Will is Respected: Legal Protections Against Challenges

Wills made by disabled people have the same legal protections as anyone else's. Understanding these protections and strengthening your will helps prevent challenges.

Legal protections:

Presumption of capacity—burden of proof on the challenger
Equality Act 2010 makes discrimination based on disability illegal
Your will is valid unless proven otherwise
Disability alone cannot invalidate a will

Common challenge grounds:

Lack of testamentary capacity
Undue influence
Fraud or forgery
Failure to comply with Wills Act 1837 formalities

Strengthening your will against challenges:

Get a capacity assessment if any doubt exists
Obtain contemporaneous medical records
Write a letter of explanation for your decisions
Use independent witnesses (not beneficiaries)
Consider video recording of signing (optional but powerful)
Store your will with a reputable storage service

Undue influence concerns:

Disabled people are sometimes vulnerable to pressure from others. Signs of undue influence include sudden changes to your will, isolation from family, or someone controlling access to you.

Protection strategies include making your will independently, using an online service (no in-person pressure), and speaking to a trusted person about your plans.

If someone challenges your will, they must provide medical evidence questioning your capacity. You can defend with evidence of capacity, such as assessment reports or witness statements.

The court presumes capacity unless clear evidence proves otherwise. Properly executed wills with documentation are unlikely to be successfully challenged on disability grounds alone.

WUHLD provides additional protection through the preview feature—you see your complete will before paying, ensuring you understand its contents. An electronic record of the creation process provides a clear audit trail.

Frequently Asked Questions

Q: Can a disabled person make a will in the UK?

A: Yes. Disabled people in the UK have the same legal right to make a will as anyone else. Under the Mental Capacity Act 2005, everyone is presumed to have capacity unless proven otherwise—disability alone does not affect your ability to create a legally valid will.

Q: Do I need a doctor's note to make a will if I'm disabled?

A: No. Most disabled people don't need capacity assessments or doctor's notes. Assessment is only appropriate when there's genuine doubt about cognitive understanding—typically with degenerative conditions affecting cognition, not physical disabilities or stable conditions.

Q: How does inheritance affect disability benefits like Universal Credit?

A: If you inherit money directly and your total capital exceeds £16,000, you'll lose Universal Credit and other means-tested benefits. Capital between £6,000 and £16,000 reduces your benefits. Non-means-tested benefits like PIP and DLA aren't affected by inheritance.

Q: What is a disabled person's trust?

A: A disabled person's trust holds inheritance for a disabled beneficiary without counting as their personal capital. This protects means-tested benefits while allowing trustees to use funds for the beneficiary's wellbeing. These trusts offer tax advantages and must be set up in the will itself.

Q: Can someone with dementia make a will?

A: It depends on whether they have testamentary capacity at the time of signing. Early-stage dementia doesn't automatically mean incapacity—capacity is assessed based on understanding, not diagnosis. A professional capacity assessment on a good day can establish whether they understand will-making.

Q: What happens if I lose capacity before making a will?

A: If you lose capacity without making a will, family members can apply to the Court of Protection for a statutory will. This costs £408 plus legal fees (typically £3,000-£4,000) and takes 6-12 months. It's far better to make your will while you have capacity.

Q: Do I need a lasting power of attorney if I have a will?

A: Yes—they serve different purposes. An LPA covers lifetime decisions if you lose capacity (managing money, medical treatment). Your will covers what happens after your death. Both are essential planning tools, especially with progressive conditions.

Take Control of Your Estate Planning Today

Key takeaways:

You have the legal right to make a will—disability doesn't equal incapacity, and 25% of the UK population is disabled with the vast majority having full testamentary capacity under the Mental Capacity Act 2005.
Capacity assessments are rarely needed—only required when there's genuine doubt about cognitive understanding, not for physical disability, stable mental health conditions, or neurodivergence.
Protect benefits with trusts—if leaving inheritance to a disabled person receiving means-tested benefits, use a disabled person's trust or discretionary trust to prevent them losing Universal Credit or Housing Benefit when capital exceeds £16,000.
Consider lasting powers of attorney—LPAs protect your autonomy during your lifetime by letting you choose who makes decisions if you lose capacity, especially important for progressive conditions.
Remove accessibility barriers with online wills—online services eliminate travel, multiple appointments, and high costs, making estate planning accessible from home at your own pace.

Emma from our opening example created her will online in 15 minutes from her sofa. She didn't need a capacity assessment, a doctor's letter, or anyone's permission.

She made her decisions, protected her partner's future, and reclaimed her autonomy—exactly as she had every right to do.

You have the same legal rights as anyone else to plan your estate and protect the people you love. With WUHLD, you can create a legally valid UK will in 15 minutes online for £49.99—no appointments, no capacity assessments unless genuinely needed, no travel required.

Preview your complete will free before paying anything. You'll receive:

Your complete, legally binding will
A 12-page Testator Guide explaining how to execute your will properly
A Witness Guide to give to your witnesses
A Complete Asset Inventory document

Start protecting your legacy today.

Ready to Create Your Will?

WUHLD makes it simple to create a legally valid will online in just 15 minutes. Our guided process ensures your wishes are properly documented and your loved ones are protected.

Start creating your will now — it's quick, affordable, and backed by legal experts.

Legal Disclaimer: This article provides general information about estate planning for disabled people in the UK and does not constitute legal advice. For advice specific to your individual situation, please consult a qualified solicitor. WUHLD's online will service is suitable for straightforward UK estates; complex situations involving substantial assets, complicated trust structures, or uncertain capacity may require professional legal advice.

Sources: