The Law Commission has issued a report following consultation as to the current state of the law in relation to making Wills in England and Wales.
The 494-page report contains 31 recommendations to HM Government for reform and is accompanied by a draft bill intended for consideration by Parliament.
The Government has welcomed the report and it seems likely to be carried forward soon.
John Breeze, director, Head of Will, Trust and Inheritance Disputes at Wake Smith Solicitors looks at the proposed changes.
John, who inputted into the consultation, is mentioned in the report with The Law Commission agreeing with his viewpoint and suggesting his proposed change.
The main changes proposed are:
- The repeal of the Wills Act 1837 is to be replaced by the new Wills Act, written in updated language, making the recommended changes and placing various aspects of judge-made common law onto a statutory footing.
- At present only adults over the age of 18 may make a Will. The qualifying age will be lowered to 16, with the Court also being given the power to permit under 16’s to make Wills in certain circumstances.
- Digital Wills to be allowed, subject to the same strict requirements that apply to paper Wills, requiring the testator to “sign” in the presence of two independent witnesses and vice versa. The Act will allow further regulations to be made governing electronic Wills.
- The Court to be given wide powers to give effect to a testator’s wishes even if they did not make a valid Will. This is wide-ranging. At the lower end of the spectrum the Court may admit a Will which fails on a mere technicality – e.g. due to not being signed and witnessed properly. At the top end the Court may allow any type of “document” to be treated as a Will and given effect, interpreted widely that may include a paper note, letter, email, video recording or text message.
- A marriage will no longer automatically revoke an earlier Will with the effect of reinstating the application of the default intestacy rules. This was John’s recommendation, as quoted in the report.
“Some consultees argued that it should be up to testators as to whether and when to revoke or update their wills. For example, solicitor John Breeze, said that making or revoking a will “should be a deliberate act. … The intestacy rules should only provide a default position in the absence of a will, and not be reintroduced by a marriage”. Similarly, some consultees noted that the decision to get married and the decision to make a will are different, with different underlying intentions.”
- Applying a brand new test for capacity to make a Will, to align with the modern approach contained in the Mental Capacity Act 2005, replacing the well-established line of judicial authority following the case of Banks v Goodfellow (1870). A new Code of Practice will also provide guidance for those assisting in the process of assessing testamentary capacity.
- Presumption of undue influence will apply to suspicious Wills, enabling the Court to reject a Will unless the person advancing it convinces the Court on the balance of probabilities that it was made freely.
- Widening of the scope of the Court’s power to rectify the terms of a Will which, as drafted, has unintended consequences and therefore does not represent the testator’s true intentions.
Wake Smith Solicitors offers a wide range of services on Wills, Trusts and Probate, including making and challenging a Will.
For further information on Wills, LPAs, Trusts and Probate call 0114 266 6660 and ask to speak to someone in the Private Client Team.
Appointments are available over the phone, via Teams, in person at our office, or, depending on your location, we will come out to you.
If you have a dispute or concerns about the validity of a deceased person’s Will, contact John Breeze on 0114 266 6660.