Law on Wills Should be Brought into the ‘Modern World’

Radical proposals to update how wills are written and interpreted in the UK have been put forward by the Law Commission for England and Wales, which is calling for the law around wills to be brought into the "modern world."

The independent law reform body said the current rules were "unclear" and could be putting people off from making a will. It is considering whether texts, emails and other electronic communications should be recognised as a valid will in exceptional circumstances and has launched a consultation. Currently, 40% of adults die without a written testament.

The commission proposes that new powers would allow county and High Court judges to decide "on the balance of probabilities" whether a recording or note is an accurate summary of a person's wishes.

However, the commission conceded that the proposals to use digital devices had the potential to precipitate family arguments and it underscored the need for electronic signatures to be secure, for “viable” infrastructure to support electronic will-making, and an element of consistency across different platforms.

IBB Partner and wills expert, Jacqueline Almond commented:

"It is high time that the Law Commission looks at bringing wills into the 21^st century. However, there are important safeguards already in existence and it is important that these are not lost at the expense of convenience. The number of challenges to wills has increased over the past five years, therefore any changes must ensure that there is certainty in the process of creating a will.

A new mental capacity test is welcome. The current test of capacity to make a will is almost 150 years old so bringing it in line with the Mental Capacity Act 2005 seems to be an obvious step.

Making a will requires thought and for many people there are various factors to take into account: young children, vulnerable beneficiaries, second families, tax, long term care and many others. Whether these wishes are recorded on paper or digitally does not really matter. It is the consideration which has gone into the will which is important".

Flexibility of digital wills needs to be balanced with security

“The issues of security, viable infrastructure, and consistent implementation all indicate that a balance needs to be struck between regulating electronic wills and allowing enough flexibility in the law for electronic wills to develop,” noted the commission.

The commission went on to say:

“A person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write. On the other hand, the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives . . . They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a will on the basis of a dispensing power.”

Suggested lowering of the minimum age of testators

The commission has also suggested lowering the minimum age of testators from 18 to 16 and applying the test of capacity in the Mental Capacity Act 2005 to wills.

Noting the significant variation in the age at which people can make wills in different jurisdictions – it is just 12 in Scotland – the commission said: “There may be 17-year-olds who have left school, live alone, have jobs and parental responsibilities but cannot make a valid will. That sort of anomaly is sufficient reason to re-examine the age of testamentary capacity.”

Reforms outlined by the commission could also include a new mental capacity test which takes into account conditions such as dementia.

Professor Nick Hopkins, the law commissioner in charge of the consultation project, said: “Making a will and passing on your possessions after you have died should be straightforward. But the law is unclear, outdated and could even be putting people off altogether.”

“Even when it is obvious what someone wanted, if they have not followed the strict rules, courts cannot act on it. And conditions which affect decision-making, like dementia, are not properly accounted for in the law. That is not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes,” said Professor Hopkins.

Warning that proposals could serve to increase court actions

Claire Davis, director of Solicitors for the Elderly, said of the proposals: ‘Wills are extremely powerful documents and it is important people understand the potential risks we are exposing ourselves and our loved ones to without seeking professional legal advice. If implemented, we foresee these proposals resulting in an increase in challenges from disgruntled or dissatisfied relatives, which will only serve to increase court action and all its attendant costs.”

The Law Commission has published these and other suggestions in a consultation paper; submissions are open until November 10th.

Contact Buckinghamshire's leading wills, trusts and probate law experts

For advice on issues relating to wills, trusts, probate, mental capacity and Lasting Powers of Attorney, and tax and estate planning, contact IBB Solicitors' specialist team, on 03456 381381 or email enquiries@ibblaw.co.uk.