The law governing the making of wills is now 180 years old, having been established in the Wills Act 1837. A consultation has been published today (13 July 2017) by the Law Commission with a view to updating our laws in order to make them fit for purpose and relevant in the 21st century.
It has been suggested that 40% of the adult population will die without making a will. The intestacy rules which then govern what happens to these estates do not work for everyone, particularly for second families and cohabitees. The outdated law is seen by some as a potential reason for the reluctance to make wills, and the purpose of the consultation is to determine whether the law can be modernised and improved in order to do more to encourage and facilitate people in making a will.
Key issues which have been proposed include the following:
- giving the court greater flexibility to uphold wills which do not meet the current very strict legal requirements for execution (namely it must be in writing, signed by the testator in the presence of two witnesses who then sign themselves);
- introducing the possibility of electronic will writing in the future. Whilst the technology for this does not necessarily exist yet, the Commission has proposed that primary legislation for this should not be postponed;
- reducing the age at which someone can make a will from 18 to 16 (and possibly lower in some cases);
- provision to protect testators, including introducing a presumption of undue influence and narrowing the scope of knowledge and approval, placing some limits on who can sign a will on a testator’s behalf and who can witness a will;
- introducing a statutory presumption of capacity to write a will and using the Mental Capacity Act test to establish capacity to write a will.
This is the first time since the Victorian era that there has been such as detailed review of the law in this area. In the last century we have seen an increasing aging population, a greater incidence of dementia, a greater understanding of medical disorders which could affect testamentary capacity, emergence and reliance of digital technology, more second families and cohabiting couples, and on the whole, larger estates.
The consultation is therefore widely seen as a welcome step towards reforming the law in this area.
Responses to the consultation paper are required by 10 November 2017.