Alicia Speed, a solicitor in the wills, probate and trusts team at Mincoffs Solicitors, details how the legislation governing wills may change in the near future.
The Law Commission recently completed a long-anticipated review of the Wills Act 1837, aiming to modernise the 187-yearold legislation. While no changes have been implemented yet, the proposals seek to modernise the law, better protect vulnerable individuals, and promote greater testamentary freedom.
Enabling electronic wills
The Law Commission is seeking to bring wills into the 21st century by allowing for the validity of electronically signed wills. Given the risks involved, especially in relation to witnessing, the Commission recommends specific requirements to ensure such wills are reliable. Protections would also be included for testators who may be vulnerable to duress or pressure when making an electronic will.
Abolishing revocation of wills after marriage or civil partnership
Currently, a will is revoked by marriage or civil partnership unless it is made in contemplation of the same. The Commission suggests this be reviewed, as revocation in these cases can be exploited in predatory marriages – a growing form of financial abuse. In such cases, intestacy rules could result in an entire estate passing to a new spouse or civil partner. The proposal aims to protect individuals from coercion and ensure wills cannot be invalidated in such circumstances.
Giving effect to wills that don’t meet formal requirements
If a will is not executed properly then it is not valid, even if the testator’s wishes are clear. The Law Commission recommends allowing courts the discretion to uphold such wills in exceptional cases, where the testator’s intentions are evident. This would include safeguards requiring court approval and would be considered on a case-by-case basis.
Lowering the minimum age to 16
At present, a person must be aged 18 or over to make a will, unless they are serving in the armed forces. The Law Commission notes that some individuals under 18, such as terminally ill children or wealthy young people, may need to make a will. Without this ability, estranged parents could inherit under intestacy rules. Many other countries allow those aged over 16 to make wills, and this change would reflect the capacity of those aged between 16 and 18 to make other significant decisions.
Clarifying the requirement for mental capacity
There are currently two tests for mental capacity, depending on whether it’s assessed directly when the will is made, or by a court using the Mental Capacity Act 2005. The Commission proposes adopting a single test: the modern approach in the 2005 Act. The older testamentary capacity standard is outdated, and using one clear legal standard would reduce confusion and modernise the law.
Further protection from undue influence
It is currently very difficult to challenge a will made under pressure, as the burden of proof lies with the person contesting the will. The Law Commission proposes giving courts the power to presume undue influence where there are clear and reasonable grounds for suspicion. This would make it easier to challenge suspicious wills and better protect vulnerable individuals from financial abuse.
Next steps
The Law Commission’s report has now been submitted to Parliament, along with a draft bill. It is now for the Government to decide whether the proposals should be implemented.
For friendly, sensitive advice on any area of wills, probate and trusts, contact the department on probate@mincoffs.co.uk, or speak to one of the team on 0191 281 6151.
www.mincoffs.co.uk