Putting a Will in place is one of the most important things you will do in your lifetime. It ensures your wishes are met after death, your loved ones are provided for and those closest to you are not left with the stress of having to administer your estate with no direction from you.
The law in relation to Wills however is old and many people agree that it is outdated.
Governed by the Wills Act 1837 along with various caselaw dating back to the 19th Century, there has been a big push over the years from those within the legal industry calling for a review of the law surrounding Wills.
We have experienced so many changes in our society over the past 200 years with people now living a lot longer and many suffering from ill health, with cases of dementia on the rise.
We have also seen significant advances in technology and the use of social media, and it is more important now than ever that the law keeps up to date with these changes.
As a result, the Law Commission opened a consultation looking into this area and have now published their report giving recommendations on the modernisation of Wills.
What recommendations were given?
1. Abolishing the rule that marriage automatically revokes a Will
The law currently states that when a person marries or enters into a civil partnership, their Will in automatically revoked (unless there is intention to the contrary in the Will).
The worry here is that this rule can be exploited by those who enter a predatory marriage with a vulnerable person as was seen in the widely known case of Joan Blass who, at the age of 87 and already diagnosed with dementia, married a man in private and without the knowledge of her close family, including her daughter Daphne who lived 30 meters away from her.
On Joan's death, her husband inherited the entire estate which under Joan's Will had been left to her children. Had the Law Commission's recommendation been passed into law, Joan's Will would not have been revoked and her wishes under her Will carried out.
2. Testamentary freedom
In England and Wales, we have testamentary freedom which means that we can leave our entire estate to whoever we so choose.
However, the execution of a Will must be carried out in accordance with the Wills Act in order to be considered valid. Any deviation from these requirements means the document will not be considered valid.
The recommendation is to give the court the power to dispense with the formal requirements to make a valid will, to be used on a case-by-case basis. This means that where the wishes of the deceased are clear but the formalities of putting a valid Will in place have not been followed, the court will allow the Will to take effect.
3. Allowing electronic Wills to be legally valid
During the COVID pandemic, temporary legislation was passed to allow Wills to be witnessed via video link., given the fact that we were not allowed to meet with other people during lockdown, with particularly care given for the elderly or vulnerable given the risk of catching the virus.
The recommendation would allow people to make Wills electronically so long as they comply with certain requirements.
4. Lowering the age at which you can make a Will from 18 to 16
The law currently states that generally you can only make a Will from aged 18 (save for very specific exemptions)but this recommendation would deal with a scenario whereby a terminally ill child does not wish for their parent to inherit their estate where they have had little or no involvement in their life.
5. Increasing protections available for those who are coerced into making a Will
The law currently makes it very difficult for someone to challenge the Will on the basis of undue influence (when someone is forced into making a Will on certain terms when they don’t want to), and this recommendation would allow the courts the ability to infer undue influence where there are reasonable grounds to suspect it.
6. Clarifying the law on testamentary capacity
Testamentary capacity is the test that we all must satisfy when making a Will, and the problem is that there are currently two tests.
The first test derives from case law and is based upon whether we have the capacity to make our own Will, and the second is from the Mental Capacity Act 2005 which focuses more on whether the court has the ability to make a Will on someone's behalf.
The recommendation is that the test under the Mental Capacity Act 2005 should apply.
What next?
Now that the Law Commission has published its report, it is for the Government to review and consider.
The Law Commission has also published a draft Bill for a new Wills Act incorporating the recommendations which can be viewed using the following link:
Modernising wills: Final Report Volume II: draft Bill for a new Wills Act
It is now a waiting game so watch this space for more updates.
