News | January 11, 2024

Time for Change: Modernising the UK Law on Wills

The law governing Wills in England and Wales is almost 200 years old. It is therefore unsurprising that the Law Commission has been consulting on proposed reforms. Its Wills project (paused in 2019) was picked up again in 2022, with a supplementary consultation paper focusing on two issues: electronic Wills; and predatory marriages.

Electronic Wills

During the pandemic it was difficult, because of lockdown and social distancing, to comply with the rules regarding the execution of Wills (requiring wet ink signatures, and two witnesses present at the execution). The Law Commission is therefore asking for views on whether execution requirements for Wills might be updated to better reflect modern practices and technology.

Predatory marriages

Much media attention has recently been given to predatory marriages (by which term, we also include civil partnerships). These are facilitated by the operation of the little-known rule that marriage revokes a Will.

In predatory marriage situations, the elderly and those with reduced mental capacity are targeted and persuaded to marry. This automatically revokes their Will, often unknowingly, but even if the victim knows their Will has been revoked, they will often lack the capacity to make a new one (the test for capacity to marry being less stringent than that for making a Will). Consequently, on the victim’s death, the new partner inherits under the intestacy rules – taking most, if not all, of the estate. The victim’s family members are often unaware of the marriage and are left to make legal claims for provision from the estate: such claims are expensive, time consuming and difficult to bring successfully for adult children who are not supported financially by the deceased. Perhaps more upsettingly, the new partner often has complete control over the deceased’s burial and funeral arrangements.

The Law Commission is seeking views on whether to abolish the rule that marriage revokes a Will. Abolition will better reflect modern life where couples often cohabit before marriage, having already purchased property
together and made Wills. Although not included in the consultation paper, it should be noted that the position is different on divorce: Wills of divorced couples are not automatically revoked but the former spouse is treated as having pre-deceased, the effect being that they are not entitled to any gift under the Will. Whilst helpful, divorced couples should re-do their Wills to better reflect their new circumstances.

Wedlake Bell has responded to the Law Commission consultation paper to represent the interests of our clients. If you have any questions in connection with the issues discussed above, please contact Caroline Russell or your usual Wedlake Bell adviser.