Modernising Wills Law

The Background and Aims of the Report

The Law Commission’s final report, Modernising Wills Law, published last month, marks a significant stride toward updating the outdated legal framework governing wills in England and Wales.

The law governing Wills dates from 1837 and case law from the nearly 200 years since that legislation. Inevitably it has not kept pace with the vast social and technological changes in the intervening years.

The key proposals are far-reaching with their stated aim of addressing issues such as outdated and often unhelpful and off-putting formalities, the protection of vulnerable individuals, and the integration of technology into the will-making process.

The Law Commission’s Recognition

The Commission recognises that:

• Many people are living longer than their ancestors did, and more people will suffer from ill health and a decline in their mental capacity that are commonly associated with old age.
• The property that the average person owns may be more valuable than it was in the past.
• Documents in electronic form are now far more prevalent than paper documents.

The Law Commission seeks to strengthen the exercise of testamentary freedom -a person’s right to make their Will and determine the disposition of their estates with the minimum of legal restraint while protecting testators from undue influence and fraud. All this while increasing clarity and certainty in the law.

Main Recommendations of the Report

• Replace outdated Victorian case law on testamentary capacity with the Mental Capacity Act 2005 to reflect modern medical understanding.
• End automatic revocation of wills on marriage to prevent unintended disinheritance and protect individuals, especially in predatory marriage cases.
• Allow existing wills to remain valid post-marriage unless the individual chooses to create a new one.
• This change offers greater autonomy and protection for those vulnerable to exploitation or coercion.
• Introduce a separate doctrine of testamentary undue influence to better protect vulnerable individuals from coercion and exploitation.
• Empower courts to infer undue influence when reasonable evidence is available, reducing the current high burden of proof.
• Lower the legal age for making a will from 18 to 16 to align with the Mental Capacity Act 2005.
• Embrace electronic wills to modernise the will-making process in line with everyday technological use.
• Permit digital creation and execution of wills, building on practices like remote witnessing seen during the Covid pandemic.
• Relax rigid formalities from 19th-century legislation that often invalidate testamentary documents over technicalities.
• Allow courts to recognise wills that clearly reflect a testator’s intention, even if not formally executed in time.

Potential Pitfalls

While the proposed reforms aim to modernise and protect, they also present potential challenges. The introduction of electronic wills, for instance, could lead to an increase in disputes over authenticity and intent.

Without stringent safeguards, there is a risk that individuals could be coerced into creating or modifying wills digitally, especially if they are isolated or under duress.

Additionally, the shift in the testamentary capacity test may lead to increased litigation as individuals challenge the validity of wills based on perceived capacity issues. While the intention is to protect vulnerable individuals, the practical implications could strain the legal system and create uncertainties in estate administration.

 

Next steps

The government has welcomed the report and stated its intention to give serious consideration to the recommendations and the draft bill contained in the Commission’s report.  This will entail parliamentary scrutiny, a process which could take a further 12 months.

The final report does tackle this major issue in a way which boldly addresses the complexities of contemporary society. The proposals to lower the age for making a will, align the capacity test with modern standards, protect against undue influence, and integrate technology into the will-making process are an attempt to create a more inclusive and protective legal framework.

However, these reforms must be implemented with caution, ensuring that adequate safeguards are in place to prevent abuse and maintain the integrity of the will-making process. As society continues to evolve, so too must the laws which govern it, but this evolution must be carefully managed to balance innovation with protection.

Meanwhile the Report is a useful prompt to us all to consider making or reviewing our Wills and the dedicated Wills and Estate Planning Team at 360 Law Services is ready to assist you.