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Law Commission proposes Wills overhaul

View profile for Debbie Duggan
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The Law Commission has announced that they are holding a wide ranging consultation in order to bring the current laws surrounding Wills in line with the modern world.

A number of measures have been proposed including changing the term ‘Testator’ (a person who has made a will or given a legacy) to ‘Will Maker’. Other proposals within the consultation include:

Electronic Wills

The consultation does not define how an electronic Will may work in practice but it states “Considering the numerous potential ways in which electronic Wills could be made, we are cautious of proposing overly specific primary legislation”. Primary legislation is the acts and laws passed by the government which rule our society. If it is over specific it may make the legislation unworkable due to the speed technology is developing and the range of electronic means available.

A complete overhaul like this will require much consideration as valid execution of a Will requires the presence of a Witness. Whether this needs to be by their physical presence or could be done by way of video conference is one such question which needs to be addressed.  Mental capacity of a Testator (or ‘Will Maker’), undue influence and the levels of protection required for electronic Wills will need to be well thought out.  

Mental Capacity

The current test for mental capacity (the ability to make your own decisions) was laid down in the case of Banks and Goodfellow in 1870, a case concerning a Testator who suffered with delusions of the mind. The test does not necessarily cater for conditions such as dementia where mental capacity can vary. The consultation proposes updating the law in relation to capacity to adopt the test from the more recent Mental Capacity Act 2005. The Act requires the following questions to be considered when determining mental capacity:

Is the person unable to a decision for him or herself in relation to the matter?

Is the person unable to make the decision because of an impairment of, or a disturbance in the function of his or her mind or brain?

This approach focuses on the capacity to make that specific decision and not other decisions.

Discretion of the Court

The consultation proposes to give Courts the power to recognise a Will where the rules of formality have not been strictly followed but the intentions of the Testator are clear. An example of this might be where the Will was not properly witnessed but all other aspects were correctly concluded.

Minimum Age

The ability to make a Will arises when an individual reaches the age of 18, however the consultation discusses the possibility of lowering the minimum age limit to 16, the same as the legal age of marriage, joining the army and making your own medical decisions.

The two broad approaches in the consultation are to:

lower the age that an individual can make a Will to 16; or

introduce a new rule allowing people below the minimum age limit to make Will in appropriate cases.  What constitutes an ‘appropriate case’ will be another factor which will require consideration.

The above is just a number of the key points discussed in the consultation. The law in relation to Wills has not yet been changed.

The consultation is due to end in November 2017, at which point further items will be decided upon and will have to be approved by parliament before they become law. We are unlikely to see any changes in the immediate future, however we will update you when further information. 

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