Law Commissioner Professor Nick Hopkins has stated what a lot of law professionals have been thinking; “Making a will and passing on your possessions after you’ve died should be straightforward. But the law is unclear, outdated and could even be putting people off altogether.” This is supported by the fact that 40% of adults die without a will. The Law Commission’s recent consultation paper seeks to address these issues.
Under current law a valid will has to be in written form, signed by the testator and endorsed by two independent witnesses. The language used in wills is often archaic which can cause unnecessary confusion. The Law Commission has suggested that certain terms are modernised such as changing the term 'testator' to 'will maker.' Such recommendations are likely to be uncontroversial and will help ensure that the process is more accessible.
The Law Commission also suggest that the formalities for making a will should be less stringent. They propose that courts could consider texts, emails and voice messages, to determine someone’s wishes relating to their estate. However the report recognises that this approach “… could provide a treasure trove for dis-satisfied relatives. They may be tempted to sift through a huge number of texts, emails and other records in order to find one that could be put forward as a will. In that way, the large number of electronic documents that we store… may open up a variety of avenues by which probate could become both expensive and contentious.”
The Law Commission considers that formal electronic wills, which are easy to update, would be the safer option. However with suggestions, the possibility of the vulnerable being abused and the process becoming contentious is clear. It will be interesting to see what proposals are made which combat these obvious concerns.
In order to make a valid will you must have the requisite capacity. The current test for capacity relies on a historic test which has failed to keep up to date with our understanding of mental health. One of the main problems that arise is when the testator has dementia. We now know that individuals with dementia can have long periods in which they are lucid and are perfectly able to make a will; however this is not reflected in the current law. The Law Commission suggests that the test for capacity should be the test set out in the Mental Capacity Act 2005. This is a modern and flexible test which is more relevant than the historic test currently applied.
Unlike other European countries, English law provides for unfettered testamentary freedom. The Law Commission has endorsed the point by stating that if a will maker decides to favour a charity over family, this should not mean that the will is deemed 'suspicious.' Although no reference was made to the Supreme Court decision of Ilott v The Blue Cross and ors, there can be little doubt that the Law Commission was influenced by the high profile case which reiterated the importance of testamentary freedom.
The current minimum age for making a will is 18, under the Law Commission’s proposals this would be reduced to 16. At 16 years old you are able to get married, join the army, consent to sexual activity and live alone. If the government have entrusted these responsibilities to 16 year olds then why can they not leave a will?
The Law Commission say that the need for the age limit to be lowered was demonstrated by the case of a 14 year old girl suffering from terminal cancer, identified only as JS, who sought permission from the high court to have her body cryogenically preserved in the hope that she could be brought back to life at some point in the future. The Judge found for the child’s mother, who allowed for her daughter’s wishes to go ahead. However the Judge noted that “If JS were able to make a valid will, she could simply have appointed her mother as her executor and no dispute would have arisen.” It should be noted that there is no current recommendation that the age be lowered below 16.
The recommended reforms to the law of will making has been largely welcomed by professionals. It remains to be seen what changes are actually implemented and how the government will be able to safeguard the vulnerable in our society.