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August 29, 2017

Consultation on Reform of the Law of Wills

A public consultation is to be held by the Law Commission of England and Wales on the reform of the law of Wills. The current law is largely derived from the Wills Act 1837, with supporting case law from Banks v Goodfellow from 1870. It is generally felt that the laws and precedents are antiquated and in need of updating.

The driving force behind the review are the significant changes to society, technology, and medicine that have occurred since the Victorian era. The consultation notes the following factors:

  • the emergence of, and increasing reliance on, digital technology;
  • changing patterns of family life – e.g. more cohabiting couples and more people having second families:
  • with more people having substantial amounts of property, the importance of clarity about what happens to it after death
  • the evolution of the medical understanding of disorders, diseases and conditions that could affect a person’s capacity to make a Will;
  • the ageing population;
  • the greater incidence of dementia.

In light of the above, the Commission will look to modernise Will law, where it no longer has an effective contemporary application. Some of the areas that will be focused upon include:

Undue Influence: Consideration of new rules to protect testators from being influenced by other people, particularly those who may be vulnerable as a result of age, illness or social isolation.

Testamentary Capacity: A proposal to lower the age required to make a will from 18 to 16, to reflect the general medical opinion that 16 and 17 year olds are recognised as capable decision makers. This should help protect, for example, young people with significant assets that may not wish for them to be passed on to an estranged parent (according to the rules of intestacy).

Electronic Wills: Consideration of the practical challenges of incorporating technology into the will writing and execution process. How modern technology might be adapted to make it cheaper and easier to prepare a will, and the issues with this (fraud, exploitation etc.).

Dispensing Power:  Currently where formalities are not complied with, a will is rendered invalid. Where the intentions of the deceased were clear, dispensing powers will enable the courts to disregard the formalities of the will e.g. having 2 signatories.

Capacity Review: Given modern understanding of a person’s capacity to act, it is proposed that there is an update to the tests to determine whether a person is capable of acting on their own behalf (e.g. dementia) in line with Mental Capacity Act 2005.

Statutory Guidance: A proposed code of practice, to help testators and practitioners to recognise who should be assessing capacity, and to allow doctors and other professionals to effectively assess whether a person has the required mental capacity to make a will.

The Commission’s conclusions, along with its final recommendations and a draft Bill, are expected to be published in early 2018.

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