Proposed changes to the law on Wills
- AuthorAndrea Bingham
In July 2017, a four month public consultation was issued by the Law Commission on reforming the current law of wills which dates back to 1837. They also proposed reforms to the test of a person’s capacity to make a will, which was set out in a case in 1870. The Law commission proposed that “the law of wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era”, suggesting that the current law is “unclear”and “outdated”.
Some of the reasons behind the proposals are to take account of the ageing population; greater incidence of dementia; better understanding of medical conditions affecting capacity to make a will; increasing use of digital technology; changing family patterns – cohabiting couples and second families, and people possessing more assets on death.
The reforms proposed by the Law Commission are wide-ranging and include
• Enabling the Court to dispense with formalities if it is clear what the deceased wanted
• Using the Mental Capacity Act 2005 to test for capacity to take into account understanding of conditions like dementia
• A code of practice for doctors and professionals on whether a person has capacity to make a will
• Protecting the vulnerable from undue influence of others by making a gift to the cohabitant, parent or sibling of a witness void
• Reducing the age someone can make a will from 18 to 16
• Paving the way for electronically executed wills.
Currently for a will to be valid, it must be written by an adult of sound mind and signed in the presence of two witnesses who sign the will in the presence of the testator and of each other. The Commission’s proposals call for the law to be relaxed and allow notes, emails and voicemails to be used in place of a formally written will. Judges under these proposals would be able to decide “on the balance of probabilities” whether a recording or note was an accurate summary of the deceased’s wishes. The Law Commission does acknowledge that such wide-reaching changes with electronic communication could lead to family disputes with costly legal arguments. This power already exists in Australia, Canada, South Africa and in some US states.
So are the changes really necessary or are they just an attempt to keep moving with the times? It is thought that 40% of people die without having made a will and the Law Commission hope their proposed reforms would encourage people to make a will. People are not always aware that:
• If someone dies without a will, intestacy rules dictate how their possessions are distributed – which may not be how the deceased would have wished
• Unmarried partners and those who haven’t registered a civil partnership can’t inherit from each other unless there is a will
• Under the current law if you get married, an earlier will is automatically revoked or cancelled
The Law Commission are now analysing the responses to their consultation and we await their findings with interest.