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Modernisation of the Wills Legislation

Posted on February 6th 2018 by

The Law of Wills - What Can We Expect To Change?

On 13 July 2017, the Law Commission launched a public consultation on reforming the law of wills. The consultation assessed how the existing legislation passed in 1837 could be updated to reflect the changes that have taken place in society over the last 180 years. The consultation period closed on 10 November 2017 and the Law Commission are now analysing the responses they have received.

The Law Society welcomed the consultation stating it is a “step towards updating our will-making laws to keep them fit for purpose in the 21st century”, however others in the profession were not so positive, fearing that changes may cause ambiguity and see more cases litigated through the courts.

The key proposals that the Law Commission consulted on were;

The introduction of a dispensing power allowing the courts to recognise invalidly drafted informal wills;

There has been increasing discussion about the strict interpretation of the current law, particularly where a Will has been drafted incorrectly and does not comply with the formal requirements of a Will but where the testator’s intentions are clear.

Providing the courts with a dispensing power for such circumstances is welcomed. Queensland Australia have already led the way in this area, a point that garnered much interest last year when the courts deemed a draft text in the testator’s phone to be a valid Will.

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Reducing the minimum age that a Will can be made;

Currently, the minimum age for making a Will is 18. The consultation questions whether this is appropriate in all circumstances, given that from 16 and 17 years old legally you are permitted to get married, join the army, or live alone. Whether we will see a total reduction down to 16 years old, or see exemptions being made in certain circumstances we will have to wait and see but some concession here is likely. In Scotland, the minimum age is currently 12!

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The introduction of electronic Wills;

Electronic Wills are an ever increasing point for discussion. The more technology prevails in our society, the more our hard copy Wills, hand signed by the testator in the presence of two witnesses, and then physically stored for years, seem to have a reduced place in our modern world. Whilst the introduction of electronic Wills therefore seems inevitable, the rules and limits to this innovative area are yet to be defined.

The introduction of electronic signatures could see an increase in forgeries, and there is likely therefore to be additional security requirements introduced, for example the introduction of biometrics and passwords, and of course crucially, how that electronic Will is then to be stored. With cybercrime becoming more prevalent, it is clear any electronically stored Will, must be seriously protected.

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Changing the test for mental capacity to take into account conditions such as dementia, and providing statutory guidance for mental capacity assessments.

Since 1837 when the current Wills legislation was passed, our understanding of mental illnesses affecting capacity has grown exponentially. This better understanding of illnesses such as dementia, sees a need for the mental capacity test to be updated. Likewise, better guidance can also be provided to those carrying out the capacity assessment.

It is clear that the legislation governing Wills in England and Wales is outdated and long overdue a review. Whilst some of the Law Commission’s proposals show immediate promise such as allowing the court more flexibility when the testator’s wishes are clear, others, such as electronic wills, raise important but challenging questions. These issues will need to be carefully examined to avoid unintended consequences arising.

The Commission is expected to be reporting back with its proposals later this year.

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