The Law Commission has recently reviewed the Wills Act 1837 with the view to reforming the legislation governing wills.
No changes have been implemented yet, however as the review has been ongoing since 2016 and the law is 187 years old, this reform hopes to modernise the law and protect those making a will, while also promoting testamentary freedom for those making wills.
Wills, probate and trusts solicitor, Alicia Speed considers the proposals and the effects this may have, should the changes be implemented.
The Law Commission has published the following recommendations:
- Enabling electronic wills
The Law Commission is looking to bring wills into the 21st century by making provision for the validity of electronically signed wills. Given there are risks associated with electronic wills and the validity of witnessing them, the Law Commission has recommended specific requirements to follow to ensure that such wills can be relied upon after the testator’s death. This would also include protections for the testator in circumstances where they may be vulnerable and open to duress or pressure from others to make a will, given the will would be signed electronically.
- Abolishing the revocation of wills after marriage or civil partnership
At present, the law prohibits a will from remaining valid after marriage or civil partnership, unless the will is specifically drafted in contemplation of such marriage or civil partnership.
The Law Commission recommend this should be reviewed, given that a will would be revoked in the event of a person entering a predatory marriage or civil partnership. This can be a risk to those who may be coerced into marrying or entering into a civil partnership, as the intestacy rules would then direct that all of that person’s estate passes to their spouse or civil partner (unless they have children). Predatory marriage or civil partnership is a form of financial abuse and an issue which is increasing in modern society.
In order to protect such individuals, the Law Commission proposes that this should be reviewed to ensure the current rules around revocation of wills after marriage or civil partnership can no longer be exploited by those looking to coerce others into predatory unions.
- Giving effect to wills that do not comply with formality requirements, where the wishes are very clear
Currently, if a will is not executed in accordance with certain requirements, it is deemed not valid, even if the testator’s wishes are perfectly clear.
The Law Commission has recommended that the courts should be given discretion to decide, on a case-by-case basis, that a will should be deemed valid, even if the formal requirements for validity are not met. It should be noted that this would only occur in exceptional circumstances, with the safeguard in place that the court would need to carefully consider and approve any such application.
- Lowering the minimum age to make a will from 18 to 16
At present, a person must be aged 18 or over in order to make a Will, unless they are serving in the armed forces.
However, there are circumstances where it may be beneficial for a person under 18 to make a will. For example, children suffering from a terminal illness or who are incredibly wealthy in their own right through avenues like sport, acting or music. In accordance with the intestacy rules, minors who are unable to make a will due to the current legislation could end up in situations where parents who they are estranged from inherit their estate.
There are a number of other countries where those aged over 16 are able to make wills and it is often deemed that children between 16 to 18 have capacity to make other significant decisions.
- Clarifying the requirement for mental capacity to make a will
At present there are two different tests for mental capacity. This depends on the circumstances and whether it is an assessment of the testator directly while making a will, or whether it is an assessment by the court using the Mental Capacity Act 2005 in circumstances where the court are being asked to make a will on another person’s behalf.
As part of the reforms, the Law Commission proposes that only one test should be applied to limit confusion, and that this should be the more modern test outlined in the Mental Capacity Act 2005. The test of testamentary capacity is extremely old and therefore this change can be seen as a positive step to help wills move forward into the 21st century.
- Further protection for those making a will under undue influence
Under the current legislation it can be very difficult to challenge a will where someone believes that a testator was coerced into making a will.
It is often hard, even for solicitors, to recognise undue influence on a person, as the testator may take steps to hide the fact if it is coming from someone close to them. If it is believed that a will was made under undue influence in terms that benefit the person exerting that influence, an application can be made to court to contest the will after the death of the testator. Currently, the onus on proving the undue influence is on the person making the application to the court.
The Law Commission therefore recommends this should be reviewed, believing more can be done to protect vulnerable people from such financial abuse. It is proposed that the court be given the power to assume that a will has been brought about through undue influence where there are clear and reasonable grounds to suspect it. This would give the court greater power to set aside wills made under undue influence and hopefully provide greater protections for vulnerable people.
The Law Commission’s report has now been provided to Parliament, accompanied by a draft bill, and it is up to the Government to make a decision as to whether the proposals should be implemented into practice.
At Mincoffs, we have an expert team of will writing solicitors, who are specialists in drafting wills and advising on estate planning. For friendly, sensitive advice on any area of wills, probate and trusts, contact the department on probate@mincoffs.co.uk, or call our offices and speak to one of the team on 0191 281 6151.
