Opinions and insights from Roythornes' private client team
The future of wills
- AuthorElizabeth Young
Roythornes is keenly watching developments in the sphere of wills and the results of the Law Commission’s recently launched consultation on their future. We have to agree that such an essential part of all of our lives, or more to the point, deaths is deserved of a more modern approach - but do the proposals go too far? Are those most vulnerable to possible abuse or negative influence going to be protected? Are we, as a nation, actually quite attached to our Dickensian method of recording our last wishes - all wax seals and ribbons?
It is estimated that 40% of adults die each year without a will. Is the law putting people off? Or do we believe we are invincible? Or are we suspicious that by making a will we will accelerate our demise?
The proposals are to soften the formalities. In effect, this could mean that wills (which, for a variety of reasons, would be invalid under current regulations) could be deemed by the courts to be valid, as long as sufficient intent can be demonstrated. The plan is to bring in a more modern interpretation of “capacity”, one which is in line with other key and current legislation. Surely we must have a better understanding of the many facets of mental illness and disease today than we did 150 years ago?
There is also a suggestion that the age for making a will should be lowered from 18 to 16. And why not? After all, most 16 years olds enjoy a whole range of other liberties and are considered in pretty much every other regard to be adults (or at least they think they are).
Readers may not appreciate that a marriage can revoke a will. So if someone had made specific provisions in their will to support children from a previous marriage, for example, these would be ignored and the new spouse would receive the bulk of the estate. The proposals suggest that this “blunt instrument” might be somewhat sharpened. Have your say by email to: firstname.lastname@example.org; or by post to: Damien Bruneau, Law Commission, 1st Floor, Tower, Post Point 1.53, 52 Queen Anne’s Gate, London, SW1H 9AG.
The plans also go as far as to suggest that there may be a way to enable electronic wills to be effective. There must be an IT multi-national somewhere out there itching to develop and protect the design rights for this ….
I can’t help but agree that the time is ripe for the modernisation of wills but I would urge the Commission to ensure that, whatever the outcome, the rules are simple but continue to protect those who maybe vulnerable to abuse, or the influence of others. It shouldn’t pave the way for a fraudsters’ charter or lead people to cut corners in making sure whatever they would like to happen is clearly and accurately recorded. Hopefully there will still be a place for experienced and technically expert legal assistance - otherwise I shall have to reconsider my ambition to open a flower shop!
In summary, the Law Commission proposes that;
- courts be given the power to recognise a will where lack of formality would otherwise invalidate it, as long as intention is clear;
- there be an overhaul of the rules, protecting those making a will from being unduly influenced by another person;
- the modern test of capacity contained within the Mental Capacity Act 2005 be applied to the question of whether a person has the capacity to make a will;
- new rules will provide statutory guidance for doctors and other professionals when assessing whether a person has the required mental capacity to make a will;
- the Lord Chancellor may be given power to make provision for electronic wills;
- the age at which people are able to make a will drops from 18 to 16 years.
Members of public are also asked to comment on what the main barriers are to making a will and to pass on their own experiences of disputes over wills.
The open public consultation on wills, launched on 13 July 2017, will run until 10 November 2017. It is available here to view and comment on: http://www.lawcom.gov.uk/project/wills/
Let’s hope they listen this time.