Earlier this month the Law Commission published its Consultation Paper on ‘Making A Will’. The consultation seeks feedback from the public and professionals on a number of provisional proposals for reforming the law of wills. This follows a public consultation in 2013 and responds to concerns that the law “is not as clear or protective as it could be”. The aim of this project is to produce “recommendations for a more modern, improved law of wills”, with the key objectives being to (i) support the exercise of testamentary freedom, (ii) protect testators, and (iii) increase clarity and certainty in the law.

The consultation considers a range of issues within these three key areas, including:

  • Ways to support testamentary freedom;
  • The possibility of electronic wills;
  • Whether the age of testamentary capacity should be lowered from 18 to 16;
  • Reforming the law around testamentary capacity to bring it in line with the test for capacity under the Mental Capacity Act 2005.

One of the most important issues also being considered as part of the consultation is whether the law can do more to protect vulnerable testators from fraud or undue influence. The Law Commission recognises that testators can be vulnerable as a result of a number of factors including “age, illness or social isolation” and that they need to be protected from financial abuse. It takes the view that the law could do more to protect those testators and, in particular, wants to guard against undue influence.

Under the current law the circumstances in which a will can be set aside for undue influence are very narrowly construed. For an undue influence claim to succeed the influence exerted by the accused must amount to coercion, such that it overbears the testator’s own discretion and judgment and has the effect of overpowering the testator’s own wishes without actually changing their mind. The facts must be inconsistent with any other hypothesis and the testator effectively is no longer their own free agent in making their dispositions. The burden of proof is very high and it falls on the person challenging the will to prove undue influence, and direct evidence of undue influence is unusual given that the very nature of the act means it often happens behind closed doors.

To address this issue the Law Commission provisionally proposes the creation of a statutory doctrine of testamentary undue influence. It suggests two forms that such a doctrine could take; ’structured’ (which is modelled on the doctrine of undue influence which presently applies to lifetime gifts) or ‘discretionary’ (where the court has the power to presume undue influence if it were satisfied that it would be just to do so in all the circumstances). Either way, the proposals “aim to protect vulnerable testators by broadening the scope of undue influence”.

But will these proposals really give greater protection to vulnerable testators? What about those where a combination of factors are in play? Many practitioners are concerned that the current law does not cater for a growing class of vulnerable testator; that is, those with a fluctuating mental impairment (such as dementia) who are pressurised or manipulated by friends or family to change their will (or more generally being taken advantage of), and do so.

Having dementia (or another mental impairment) does not automatically render a person unable to make a valid will. The test for testamentary capacity to make a will is laid down in Banks v Goodfellow (1870), which sets out that a testator has capacity if (1) he understands the nature of making a Will and its effects; (2) he understands the extent of the property of which he is disposing; and (3) he is able to comprehend and appreciate the claims to which he ought to give effect and is not affected by any disorder of the mind that influences his will in disposing of his property. Cases such as Hawes v Burgess and Simon v Byford are both examples of cases where the testator was suffering from dementia but their will was upheld. It is right that the law should place a great deal of emphasis on testamentary freedom and should enable testators who have varied and sometimes complex mental health needs to exercise their testamentary freedom as far as possible.

However, consider the following scenario: Mr T, a widow in his early 80s, has been suffering from increasingly complex age related health problems and declining mental health for several years. He has been diagnosed with dementia and his mental capacity regularly fluctuates, leading to ‘good days’ and ‘bad days’. He has two adult children; his son lives 100 miles away and visits once a month, his daughter has given up work to provide full time care to Mr T. He is reliant on her for his day to day needs and she regularly reminds Mr T of the significant financial and personal sacrifices she has made in order to care for him. Mr T's daughter regularly suggests that this ought to be recognised in his will. Mr T agrees that she should arrange for a local solicitor to visit him to draw up a new will in which, instead of benefitting his two children equally (as he had always previously wished), Mr T leaves 80% of his estate to his daughter. The solicitor thinks Mr T has the necessary testamentary capacity on the day he executes his will and that he understands what he is doing. Mr T’s son finds out about the updated will only on his father’s death.

Whilst the above scenario is an invention for this article, it is not uncommon and similar facts are often a feature of disputes between the potential competing beneficiaries after a testator’s death. In this example Mr T has a progressive mental disease and other health problems and is reliant on others for his care. We proceed on the basis that, despite fluctuating capacity being a feature of his day to day life, under the current law he probably had the requisite testamentary capacity and a challenge to his will on this ground would fail. Pressure from his daughter to receive a bigger share of his estate (justified by the fact that she has (she believes) made significant personal sacrifices for her father) has influenced Mr T to change his will. But conduct such as pressure or even manipulation by friends or family in such a scenario is unlikely to meet the high bar of the current test for undue influence. Yet Mr T is arguably induced to change his will due to a combination of factors that include his vulnerability, fluctuating capacity, and influence from his daughter. In circumstances such as these there is some force in the contention that the power of the daughter's influence combined with Mr T's general capacity problems and vulnerabilities has led to him substituting another's wishes for his own. Whilst undue influence and/or capacity claims are unlikely to succeed here on their own, the effect of the influence (which arguably falls short of coercion) together with the fluctuating mental capacity denies the testator the exercise of his testamentary freedom.

It is likely that practitioners in this area of law will see an increase in real cases with similar facts. According to statistics from the Alzheimer’s Society, there are 850,000 people with dementia in the UK, with numbers set to rise to over 1 million by 2025, and to 2 million by 2051. There is no doubt that dementia and other illnesses that affect understanding and communication can make people more susceptible to pressure and manipulation. The lack of clear provision in the law in its current form to adequately protect the kind of testator described above from exploitation is a potential problem that we hope the Law Commission’s consultation will be able to address.