Courts could be given powers to recognise wills in cases where the legal requirements haven’t been followed but the deceased’s intentions are clear, under sweeping reforms proposed by the Law Commission.
The Commission, which is independent but advises government on law reform, declared the current laws on wills ‘unclear, outdated’ and in urgent need of reform this week, in its consultation on Making a Will. It proposes tougher rules to protect those making a will from being unduly influenced by another person, using the Mental Capacity Act test to establish capacity, providing statutory guidance for professionals assessing capacity, and introducing a statutory presumption of capacity.
Much of the current law derives from the Wills Act 1837. Since then, lifespans have dramatically increased, incidences of dementia have risen, medical knowledge has advanced, more people own property and second or third marriages have become more common.
Law Commissioner Professor Nick Hopkins said: ‘Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making—like dementia—aren’t properly accounted for in the law. ‘That’s not right and we want an overhaul to bring the law into the modern world.’
Prof Hopkins said the law currently uses a Victorian test, which focuses on ‘delusions’ of the mind, to make sure the person writing the will understands what they are doing. He said this differs from the modern test for capacity in other areas of decision-making—the Mental Capacity Act 2005. Other proposals include introducing electronic wills and lowering the age at which a person can make a will from 18 to 16 years. An estimated 40% of people die intestate each year. Moreover, many people are unaware that marriage automatically revokes any previous wills, which can leave children from a previous marriage without provision—the consultation asks whether that rule should be retained or abolished.
Lawyers welcomed the proposals but called for secure safeguards, particularly for electronic wills. Rosemary Milns, trusts, wills and probate solicitor at Hunters Solicitors, said: ‘Yes, the law on making a will does need updating, but we need to make sure that we don't throw the baby out with the bathwater. ‘Making a will is a serious matter and certain safeguards need to be built in to protect the vulnerable from the unscrupulous.
Even under the present law there are too many incidents of undue influence or fraud. Recording how we want our worldly goods to be dealt with has to be done in a secure way so that the scope for unauthorised amendment or indeed accidental deletion is reduced to an absolute minimum.’ Law Society
President Joe Egan said: ‘Some of the proposals, such as allowing the court more flexibility when there are harmless errors in a will but the deceased person’s wishes are clear, show immediate promise and are likely to get a positive response from solicitors. ‘Others, such as enabling wills to be made electronically in the future, raise important but challenging questions, especially on how safe electronic wills would be from fraud or undue influence against vulnerable people. We will need to examine these issues carefully to help the Law Commission avoid unintended consequences such changes might create.’
The consultation ends on 10 November 2017, and can be viewed on the Law Commission’s website at www.lawcom.gov.uk/project/wills.
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