More than just a Will
26 October 2017 by James Bird
It is not uncommon for you to see articles stressing the importance of having a Will and as solicitors, it is something that we are often writing about. Whilst there is no dispute that having a Will is important for establishing where your estate is to go when you pass, it can also provide additional wishes and guidance for your family and personal representatives. This could include who you would wish to look after any children under 18 when you are gone and even your funeral arrangements.
Most people in their Will give some consideration to what they would want to happen to their body once they are gone. This could simply be a few words indicating burial or cremation or it could provide more in-depth details about a specific ceremony or what is to happen.
One of the most common wishes that we come across in respect of funeral wishes is that the testator (ie the person making the Will) is a registered organ donor and as such, they would wish for any parts of their body to be donated which could save another person’s life. It is certainly an admirable wish but the problem here is that the testator does not necessarily inform any of their family about this. Experiencing the loss of a loved one is a difficult time in itself but to then find out that the deceased wanted to donate their organs adds to the shock for some.
BBC 5 Live has discovered that almost one third of families have blocked organ donation by a deceased loved one as they believed that the whole process took too long. It is understandable that at this time they would want to say goodbye to the deceased as smoothly as possible but by blocking the wish to donate, it would appear that they are overruling the deceased’s wishes.
Although funeral wishes in a Will are not legally binding as they are simply just a wish. The NHS have said that when they have made contact with the deceased’s family to make such arrangements, the family have in some circumstances opposed such a donation and so the donation has not proceeded, even though the family do not have a legal right to override such a wish. This has, therefore, meant that hundreds of people each year have missed out on life-saving organ donations.
In 2016/17 there were 1413 deceased donors on the register and of these, 91 families had blocked the organ donation against the wishes of the deceased. Prime Minister Theresa May has said that she will introduce presumed consent for organ donation in England and so far there has been a good reaction to this from both charities and patients. This will mean that if you did not want to be a donor then you would have to opt-out of the register. However, there are some who do not believe that a “soft opt-out” system would go far enough.
Organ donation is just one of many wishes which can be placed within a Will but it is becoming common for the loved ones of a testator to not have expressed these wishes. Whilst a Will is a private document and the testator does not have to inform their family and loved ones about what they have included in this, it would certainly seem a good idea to speak to them about possible funeral arrangements and if you wish to be a donor. At least when the time comes, being contacted by the Organ Donor Register would not come as such a big surprise and those closest who are organising your affairs can try to carry out such wishes. A bereavement is already one of the hardest things to go through so by giving your loved ones a bit of advanced notice it would no doubt help them in due course.
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