It was announced this month that the Law Commission is proposing to radically overhaul the laws governing the making of wills. A consultation has been launched and will run until 10 November 2017, with conclusions and final recommendations expected to appear early in 2018.

On the one hand, this is to be welcomed, as the existing law dates back to 1837 and so in many ways does not reflect modern society, particularly technology and the ‘digital age’. The current law is criticised as being unclear and outdated. It is hoped that proposals to make it easier to make wills will encourage more people to do so, with a worryingly high, estimated two-thirds of the adult population not having a will in place. However, the proposed changes are causing concern among professionals that more contentious probate disputes could result if the law is relaxed.

The current law provides that to be valid, wills need to be made in writing and signed in the presence of two witnesses who should then also sign the will. The Law Commission’s proposals call for less formal notes, emails, videos, text messages and even voicemail messages to be treated as valid wills.

Reduce the number of disputes

The reforms say they aim to reduce the number of disputes because people will be more easily able to express their wishes or changes to those wishes. The Law Commission recognises that the changes could allow for more disputes if last minute changes have been made, or are thought to have been made and evidence is sought over and/or scrutinised as to how valid the changes are. It may also mean that elderly and vulnerable people are more at risk of undue influence from beneficiaries and even fraud.

Similarly, with the ageing population and dementia rates increasing, the issue of testamentary capacity has been highlighted as a problem area. The law here dates back to a case in 1870 of Banks v Goodfellow which sets out the legal test for having the requisite capacity to make a will. Again this is criticised by some as being archaic in language, so not easily understandable by the lay person, and outdated, not reflecting developments in medical understanding. The Law Commission proposal is to bring the test in line with the Mental Capacity Act 2005 which outlines the general capacity tests for people managing their own affairs. However, case law since the introduction of the 2005 Act has continued to prefer the Banks v Goodfellow test and consistently held it to override it, because it was only ever intended to enable the court to make decisions for living, incapable persons, not deceased persons.

Consulting on the law

In the latter part of 2013, the Law Commission began this project by consulting on the law and problems with it, and these two areas of formalities and testamentary capacity were highlighted as being the areas where the law was considered not to be working. This consultation moves on from that to suggest ways in which the law can be improved.

With estates being much more valuable now owing to house price rises, and the modern family culture with more remarriages and cohabitation, there is already more to fight over and more potential reason for a fight, than there arguably was when the law was made in the Victorian Era. While the objectives behind this project are sensible, tackling it is not going to be easy because of the risks; this may well be the reason why it has not been reviewed in nearly 200 years. While making it easier for people to make wills and thereby express their wishes may help to reduce disputes, the Commission has to ensure that it does not have the opposite effect in allowing people to make wills in suspicious circumstances only leading to there being more.