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21st-Century Wills

This month, we will consider the Law Commissions’ consultation on how Wills are made in England and Wales. Some of the key issues that are under review include:

• Giving greater flexibility to the Courts to uphold Wills that do not meet legal requirements 

• The possibility of online or electronic Will writing in the future

• Reducing the age at which someone can make a Will from 18 to 16

• Improving tests of a person’s capacity to make a Will 

Wills reform is important as the law in this area can potentially affect the entire population. You may be one of the 60% of people who die having made a Will or you may receive an inheritance under a Will. In either case, the law needs to strike a balance between allowing greater flexibility (say, where there are harmless errors in the drafting process) versus protecting testators who might be vulnerable because of their age.

What is wrong with the current law? – In a nutshell, the law of Wills is not as clear as it could be nor does it always protect as much as it should. Both these factors may discourage people from making a Will.  

These issues are not new, as the law in this area is largely based on the Wills Act 1837. It is an understatement to say that the law is in need of modernisation. The current law scarcely takes into account changes in society since the Victorian era. Some significant changes relevant to reviewing the law include the ageing population with the associated diseases of old age such as dementia; changes to family life, such as more cohabiting couples and people having second families; and more individual wealth and desire to control to whom that property passes after death. 

Problems with formalities in Wills – One issue that can cause problem with Wills is the requirements that must be complied with for a Will to be valid. The Wills Act 1837 set out that a Will must be in writing, signed by the testator in the presence of two witnesses and signed by those witnesses. Under the current law, these formality rules are strict. If they are not complied with, then a Will becomes void regardless of how small the error is. One proposal is that the Courts should have the flexibility to use their powers to dispense with a formality if it is clear that there is a simple error. For example, a testator makes a Will, they have capacity and followed all the formalities except one of the witnesses was present while the testator signed, but the testator was absent when the other witness signed the Will. Under current law, the formalities would not have been complied with, thereby making the Will invalid. If the court was given the power to dispense with the formality that the witnesses to a Will should sign while the testator is present, then the Will could take effect. Obviously, the court would need to be satisfied that the document represented the testator’s genuine wishes, but with this flexible approach, it is more likely the testator’s true wishes will be followed. 

Electronic Wills – This is not the first time that the Journal has considered the pros and cons of online Will writing. Given that the Wills Act dates from 1837, it comes as no surprise that the law assumes that a Will is a paper document. With the increasing presence of digital technology in our lives, should that technology be applied in relation to Wills? The Law Commission has focused on how the law can provide for people to make (or execute) Wills electronically. If a system of electronic Will making can be made practicable, then testators might find it easier to make Wills, and perhaps this will help tackle the problem of so many people dying without a Will.

Other possible benefits of electronic execution of Wills include improved convenience, security and cost savings. However, electronic Wills also face the risk of increased fraud and exploitation. One of the biggest risks in getting a system of online Wills to operate safely is determining how the Will should be signed. There have been many proposals, from simply allowing a typed signature to biometrics and complex cryptographic techniques. Simple electronic signatures are not going to be secure enough, but a more sophisticated system may be too expensive to operate, particularly with low-cost/standard Wills.

Children making Wills – Is the current age of testamentary capacity – 18 years – appropriate? In other areas of the law, 16- and 17-year-olds are increasingly recognised as capable decision-makers. In the recent case of Re JS, a 14-year old girl who was suffering from cancer wanted her body to be frozen after her death in the hope that she might be resuscitated and cured in the distant future. She was an intelligent young woman who had reached a settled view. Should the girl have been allowed to write a Will appointing her mother as her sole executor (note the girl’s estranged father did not want to honour her wishes)?

Capacity – As with other areas of Wills, the legal test of testamentary capacity is based on principles created in the 19th century (note the case of Banks v Goodfellow). The law currently has a modern legal test for capacity in the Mental Capacity Act 2005 (the “MCA”), and it has sensibly been suggested that this should also be used in the area of Will writing.

By using the test in the MCA, the language of the law can easily be brought into the 21st century. The MCA legislation also has some helpful key principles; for example, a person is assumed to have capacity unless proven otherwise, and a person is not to be treated as unable to make a decision just because they have made an unwise decision.

It is not certain which of the above proposals will result in the law being changed, but what does seem likely is that there will be several areas that will be brought up to date. Next month, we will consider four other areas of the law on Wills that are also under review by the Law Commission. These areas are amendments to the rules of ademption; undue influence; revocation of Wills; and deathbed gifts.  

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