News & Insights

Much of the current law governing Wills dates back to Victorian times and critics have long held that modernisation is needed. The Law Commission has looked at the potential for change and produced a report setting out its recommendations. This is the first review in almost 200 years.

With a great wealth transfer expected as substantial assets pass to the next generations and the challenges of more people living longer and dealing with reduced mental capacity, a range of new measures are suggested.

The challenges and benefits of new technology are also likely to be addressed, including the possibility of creating electronic documents and dealing with digital assets.

The Law Commission says it is aiming to “clarify the law and to ensure it is fit for purpose in the modern age.”

The Law Commission’s recommendations

Dispensing with the formalities for making a valid Will

Where an individual’s Will is invalid because the formal requirements have not been met but the person’s intentions are clear, the Commission recommends that it should be possible to give effect to those intentions. While it notes that there may be concerns relating to dispensing with formalities in this way, it cites success with similar provisions in Canada, Australia and New Zealand.

The report states, “the court will be able to look at any record made by the testator which expresses their testamentary intentions, including electronic documents, as well as video and sound recordings. In order to exercise the power, the court will have to be satisfied that what the records show are the clear and genuine testamentary intentions of the deceased person. The court will also have to be satisfied that these testamentary intentions remained unchanged at the time of the person’s death: that they truly were the person’s settled wishes with respect to their estate.”

Reforming the testamentary capacity test

The existing test for testamentary capacity dates back to the 1800s. The Law Commission feels that the test for mental capacity as set out in the Mental Capacity Act 2006 should apply. It recommends that a code of practice be issued that solicitors would need to adhere to.

Allowing rectification of a Will in more circumstances

If errors are made in the drafting of a Will because the Will writer failed to understand or properly express the testator’s wishes, it is recommended that the courts be given a wider scope to rectify a Will.

Lowering the age at which someone can make a Will

Currently, it is necessary to be 18 in order to make a Will, unless the individual is serving in the armed forces. The report suggests that the age limit be lowered to 16.

Introducing electronic Wills

The report recommends that if a reliable system can be put in place to identify the testator and witnesses, distinguish copies of a Will and prevent a Will from being changed or destroyed without consent, electronic Wills should be implemented.

Ending the automatic revocation of Wills on marriage or civil partnership

The law currently states that a Will automatically becomes invalid when the testator marries or enters into a civil partnership, unless the document specifically mentions that it is made in contemplation of this. Without a new Will, the individual will be intestate, with most if not all of their estate passing to their spouse or civil partner on death.

The Law Commission notes that this is a risk as some individuals may be induced to enter into a predatory marriage. By changing the rules, former beneficiaries may still inherit. If a spouse or civil partner is not included in the Will, they will still have the protection of the Inheritance (Provision for Family and Dependants) Act 1975.

Witnesses

Currently a gift in invalid if the Will is witnessed by a spouse or civil partner of the legatee but it is now proposed to invalid the gift to a cohabitant of the witness as with anyone who signed on behalf of the testator.

Government response

The government response is likely to take a year or so. It states that the report is “an important and timely review of the existing law” but notes that it will need “to ensure that reform does not compromise existing freedoms or protecting the elderly or vulnerable in society.”

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