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Reforming the law on wills

Tim Clarke, Barrister

The Law Commission is currently consulting on reforming the law on wills.

Anyone who has been involved in probate litigation will know how difficult this area of law can be and the Law Commission’s proposals aim to simplify and bring up to date the law on wills.

Please consider responding to the consultation and pass on these details to those in your Private Client teams.

You have until 10th November to respond.

The Consultation Summary states that it is thought “that 40% of the adult population die without a will. That matters because the intestacy rules that specify what happens to a person’s property when he or she dies intestate are a blunt instrument that will not work for everyone. Most notably, no provision is made for a person’s cohabitant under the rules. This is obviously a serious issue for the many people in England and Wales who live together who are not married or in a civil partnership. Likewise, the intestacy rules may not give the result that would be wanted by some people who have second families; for example, where a person has remarried and has children from the first marriage. Many people also wish to leave a gift to charity in their will and the intestacy rules do not make provision for this.”

“In addition, the law of England and Wales places a great deal of emphasis on testamentary freedom – the freedom to make a will in whatever terms the testator wishes, and therefore to leave his or her property to whoever he or she wants. This idea is the primary principle that underpins succession law and reflects a deeply rooted belief. A will is the primary means by which a person can exercise his or her testamentary freedom. However, testators can also be vulnerable because of age, disability or circumstance, and we take the view that the law can do more to protect such testators.”

“Further, many thousands of people each year already make wills or receive inheritances under wills; the law governing the making of a will potentially affects the entire population.”

The Law Commission considers “that these problems can be traced to the age of the law. The law in England and Wales that governs wills is, in large part, a product of the 19th century: the main statute is the Wills Act 1837, and the law that specifies when a person has the mental capacity to make a will (“testamentary capacity”) is set out in the case of Banks v Goodfellow from 1870. The law of wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era. The significant changes relevant to a review of wills law include:

(1) the ageing population;

(2) the greater incidence of dementia;

(3) the evolution of the medical understanding of disorders, diseases and conditions that could affect a person’s capacity to make a will;

(4) the emergence of and increasing reliance upon digital technology;

(5) changing patterns of family life, for example, more cohabiting couples and more people having second families; and

(6) that more people now have sufficient property to make it important to control to whom that property passes after their death.”

There are a number of proposals for significant reform which the Law Commission considers will fulfil three important policy objectives: supporting the exercise of testamentary freedom, protecting testators, and increasing clarity and certainty in the law. These include:
Consideration is also given to whether the rule that a will is revoked on marriage should be abolished and whether the rules on privileged wills are in need of revision.

  • A dispensing power allowing the court to admit a will to probate where there has been a failure to comply with legal formalities.
  • Supported will making for those with disabilities
  • Electronic wills
  • Lowering the age at which a will can be made from 18 to 16
  • Changing the rules on ademption of gifts
  • Making coherent the law of undue influence and the knowledge and approval requirements in relation to wills.
  • Changing the rules on who may witness a will so that they reflect modern family relationships
  • Changing the definition of testamentary capacity to reflect the Mental Capacity Act 2005.

The Consultation paper and the response form can be found here.

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