The Wills Act 1837 (the “Wills Act”) is probably one of the oldest pieces of legislation we tend to come across on a day to day basis. It works well because it is (a) clear, and (b) simple.

Section 9 of the Wills Act states that the standard formalities for a person executing a valid will (the “testator”) are:

  • The will must be in writing and the testator must sign it (or another person must sign it in the testator’s presence and at his direction);
  • It must appear that the testator intended by his signature to give effect to the will;
  • The signature must either be made or acknowledged in the presence of at least two witnesses present at the same time; and
  • Each witness must sign the will, or acknowledge his signature, in the presence of the testator (but not necessarily in the presence of the other witness).

These formalities allow the court to presume that the will was validly executed and expressed the testator’s intentions.

Law Commission’s Consultation

The Law Commission recently released a public consultation relating to the general law surrounding wills. The consultation is broad and one of its aims is to create “a more modern and improved Wills Act” to replace the existing legislation.

Wills are important documents. They must not be entered into lightly, by accident, or without due care and thought. It is accepted (and noted in the Law Commission’s report) that the existing formalities serve a number of purposes:

  • They provide proof that the will was executed by the testator, which is particularly important as the will may have been executed several decades before death;
  • They alert the testator as to the serious nature of making a will;
  • They provide a well-defined means of passing property on death; and
  • They can shield the testator from fraud and undue influence when making their will.
  • The consultation raises a number of potential options to streamline these formalities, with the aim of making wills “quicker and easier to make”.

It is suggested in the consultation that 40% of the adult population do not have a will. Whilst this percentage is high, many people simply do not want to focus on succession, inheritance (and, ultimately, death) unless they absolutely have to. Simplifying the formalities required for making a will may not change that.

Electronic wills

One way to “encourage and facilitate” people to make wills, is to allow testators to create electronic wills. Although difficulties will, naturally, arise around the use of electronic signatures, the consultation suggests that these security issues could potentially be addressed through the use of (a) PINs/passwords, (b) identification systems, (c) biometric signatures, (d) digital signatures. Alternatively, video wills could be used, which would side-step the difficulties with electronic signatures.

Easy access to smartphones and tablets may encourage individuals to create electronic or video wills who are, for example, on their deathbed. However there is real potential here for abuse of vulnerable individuals. In addition, it may encourage testators to spontaneously prepare wills without seeking legal guidance. If so, who will be present to spot if the testator lacks capacity, or if a family member is clearly seeking to influence a vulnerable testator? Who will take a note of the testator’s intentions at the time (s)he created the will, which may be needed many years down the line?

Dispensing powers

The consultation also discusses the possibility of “dispensing powers”. The powers would enable a court to override formalities if it were satisfied that the invalid will reflected the testator’s genuine testamentary intentions. There is an argument for this; for example if a testator clearly intended to make a particular will but, due to human error, one witness did not sign in the testator’s presence.

The dispensing powers would be subject to judicial control. It is however likely that they would result in increased litigation and uncertainty, at least to begin with. In order for them to be effective it would be necessary to prove the testator’s genuine intentions. If an accurate record of these was not taken at the time, this may be very difficult and open to interpretation.

In short…

…the potential for fraud and undue influence – particularly in relation to the elderly – is huge.

According to the Office of National Statistics, Dementia and Alzheimer disease became the leading cause of death in England and Wales in 2015, accounting for 11.6% of all deaths registered. This is reflected in the increasing number of mental capacity queries received by private client practitioners on a daily basis. With increasing numbers living long enough to lose mental capacity and with financial abuse of the elderly sadly on the increase, a proposal to remove statutory safeguards seems perverse?

In October 2007 the way in which powers of attorney were granted changed as a result of the Mental Capacity Act. The ‘new’ Lasting Powers of Attorney sought to give greater protection to vulnerable individuals, following concerns that the ‘old’ Enduring Powers of Attorney were open to abuse of power by the attorney.

In light of this we need to ensure that, in our quest to help more individuals make wills, we do not lose sight of the rationale for those safeguards contained in the original Wills Act.