The Law Commission has published a consultation on the law relating to Wills in response to changes in technology and society for the first time since the Victorian era.
The law governing Wills in England and Wales is derived from the Wills Act 1837 and has remained largely unchanged ever since.
The law as it presently stands provides that a Will can only be made by a person over 18 (although there are some very restricted exceptions) and the person making the Will (the testator) must have the requisite mental capacity to make a Will.
A Will is only valid if:
- it is in writing, and signed by the testator;
- it appears that the testator intended their signature to give effect to the Will;
- the signature of the testator is made in the presence of two or more witnesses present at the same time; and
- each witness then signs the Will themselves.
In light of developments in society and with families, the ageing population and the consequential greater incidence of dementia, the Law Commission introduced the following proposals for reform on 13 July 2017:
- a system for assisted Will making, for those who, with support from an independent mental capacity advocate, would have the capacity to make a Will;
- power for the Courts to dispense with Will formalities to ensure that the testator’s intentions are given effect. For example, this could include the introduction of a video or electronic record of the testator’s intentions;
- power to allow electronically executed Wills to be recognised as valid; and
- reduce the age to make a Will to 16.
The consultation will run until 10 November 2017, after which final proposals will be published. It will be interesting to see how, after years of unchanged legislation, these reforms may pave the way to tailor testators’ wishes in this ever-changing, technological world.