Caroline Miller
- Partner
- Private Client
Modernising wills law: Are we ready for change?
Last month the Law Commission published their long awaited report proposing changes to the law of wills.
Given the legislation upon which we currently rely is almost two hundred years old, some might say reform is long overdue, however, are we ready for change? Many of the recommendations contained in the report are welcome; adopting gender neutral language, lowering the minimum age to make a Will from 18 to 16 and aligning the capacity test with that in the Mental Capacity Act 2005 are positive attempts to modernise and reflect societal changes, but other proposals could have more significant consequences.
The current rule that marriage revokes a Will, unless it states that it is in “contemplation” of a specific marriage, is considered by many to be archaic and open to abuse. While a predatory marriage is voidable, it still automatically revokes an existing Will and, unless another Will is made, the intestacy rules will apply to the estate meaning that a significant share (if not all) passes to the surviving predator spouse. The proposal to abolish this rule may be a practical first step towards addressing this issue, however it could also lead to an increase in inheritance claims by genuinely overlooked spouses.
Other proposals recommend increasing a court’s powers to:
- interpret Wills in cases where undue influence is suspected;
- dispense with the formality requirements in relation to an invalid Will where the testamentary intentions are clear and genuine and unchanged at death; and
- rectify a Will where it is satisfied that it does not give effect to the testator’s intentions because of failings by the drafter.
Looking at the bigger picture in such claims these proposed changes should assist with reaching more satisfactory outcomes.
Perhaps one of the most controversial proposals in the report is that Wills made digitally (without a “wet” signature) should be valid. An additional formality that a “reliable” system must to used to ensure the security of the Will would be required, however what would constitute “reliable” is unclear. The witnesses could also be in the testator’s presence remotely (for example, by video call). One of the main advantages of the current formalities (in writing, signed by the testator and two independent witnesses in each other’s presence) is the protection and certainty it provides and so, while the efficacy of electronic documents cannot be denied, caution should be taken in the context of Wills.
The government has a year to respond to the report and until then it is unclear whether, or which of, these recommendations will be taken forward.
This article is for general information only and does not seek to give legal advice or to be an exhaustive statement of the law. Specific advice should always be sought for individual cases.
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