On 13 July 2017, the Law Commission published Consultation Paper 231 “Making a Will”. Pointing out that much of law on will making comes from the Victorian era, which means that it is not all ideally suited for modern life – let alone for the challenges which are coming in respect of changing family and social life, greater reliance on technology and our increased understanding of diseases such as dementia and their impact on mental capacity – it makes a series of provisional proposals to modernise the law. It also raises a number of questions for consideration.
1 – It proposes introducing ‘dispensing powers’ – a method of allowing a Court to recognise a will as being valid even where not all of the formalities have been observed. So long as the document was thought to reflect the testator’s intentions (on the balance of probabilities) then it could be admitted to probate.
2 – It questions whether a formal support scheme should be introduced in order to assist those who have diminished capacity to make wills, thus avoiding the cost and time of an application to the Court of Protection for a statutory will.
3 – It requests views on the principle of electronic wills, and the technical consequences of this (for example, signature by typing your name is too open to fraud whereas a biometric system would require a huge amount of infrastructure which may make the cost prohibitive).
4 – It proposes that the age at which someone can make a will be lowered from 18 to 16 (or potentially even lower where the testator understands the consequences of what they are doing and there are good reasons for it).
5 – It proposes various changes to the law of ademption, in order to ensure that the testator’s wishes can be met.
6 – It proposes further protection of vulnerable testators, by creating a statutory doctrine of testamentary undue influence, following either a structured approach (which would be very similar to presumed undue influence which does not currently operate in respect of wills) or a discretionary approach (where undue influence could be found where it appears just to do so in all the circumstances of the case). This would also lead to a narrowing of the scope of knowledge and approval of wills to focus on two independent questions – a) whether the testator knew and approved of the contents of the will and b) whether the will was freely executed.
7 – It proposes limits on who can sign on behalf of the testator (in the rare cases where this is required) to exclude people who might benefit indirectly. There are also limits proposed on who can witness the will, so that any cohabitant of a witness cannot benefit – with a question as to whether a parent/sibling/family member of a witness should be able to benefit.
8 – It proposes that the test for capacity set out in Banks v Goodfellow be replaced, and that capacity to make a will be judged by the test set out in the Mental Capacity Act 2005. This includes a presumption of capacity, the requirement to help someone to make a will if possible and not to treat someone as lacking capacity simply because they make a bad decision. It also suggests introducing a code of practice of testamentary capacity to provide guidance on how and when capacity should be assessed.
9 – It questions whether reform to the rule that marriage revokes a will is required. The Law Commission believes that the rule is not widely known and could be a trap for the unwary.
10 – It proposes reform to the law on privileged wills (which do not require the testator to comply with formalities) which currently allows merchant seamen to make privileged wills, along with various members of the armed forces who are not in any imminent danger. It is proposed that privileged wills be reserved for those who are in the British armed forces and civilians subject to service discipline.
11 – It proposes keeping mutual wills but allowing the property covered by the will to be available to satisfy a claim under the Inheritance Act 1975.
12 – It questions whether the concept of donatio mortis causa (deathbed gifts) should be abolished and whether the doctrine causes any particular problems
Our Contentious Probate team is producing a response to the Commission Report, which is to be submitted by 10 November 2017. We would be very grateful for your thoughts on the issues raised and have produced a very short survey to obtain responses on some of the questions which particularly request feedback.