The Law Commission has issued a report and draft bill aimed at reforming and modernising the law of England and Wales in relation to the making of Wills.
The Government has welcomed the report and seems likely to carry forward the bill soon.
As a solicitor specialising in Will, trust and inheritance disputes, Wake Smith’s John Breeze, makes some personal observations and predictions as to the impact some of the changes may have on probate litigation.
Electronic Wills
People will be allowed to make Wills in digital form for the first time. As testators and lawyers get to grips with the new regime, the High Court will start to find itself presented with various electronic Wills and evidence about the circumstances of their preparation, execution and storage, and asked to determine whether or not the Wills comply with the new requirements.
There could be unexpected consequences, and I am sure the guidance the Courts end up providing through their reported decisions will influence “best practice” for professionals making electronic Wills.
The legislation will also give the Secretary of State the power to make regulations regarding the formalities for executing and storing electronic Wills, if it is considered appropriate to do so at any time, especially as technology advances. Those regulations would also be open to interpretation by the Court.
It will also be interesting to see whether the introduction of electronic Wills has an impact on the prevalence of challenges to the validity of Wills based on allegations that a testator was unduly influenced into making it, did not “know and approve” the contents of their Will and/or lacked mental capacity. Many who responded to the Law Commission’s consultation paper, including me, were concerned about ensuring adequate safeguards would remain in place for vulnerable and elderly testators.
Other “documents” to be treated as Wills
Also for the first time, the High Court will have wide-ranging powers to give effect to a deceased’s recorded wishes, even if they did not make a valid Will.
At one end of the spectrum the Court may use the power to admit a Will which fails on a mere technicality – e.g. due to not being signed and witnessed properly – including an electronic Will as discussed above, but where is no doubt about the testator’s true intentions. This is a welcome development in the interests of justice.
However, at the other end of the spectrum the Court may allow a “document” of any kind to be treated as a Will if it is satisfied (on the balance of probabilities) that is represented the deceased’s final wishes, which it seems may include such items as an unsigned draft Will, handwritten or typed note, letter, email, video or voice recording or even a text or WhatsApp message.
It is not difficult to imagine the sort of disputes that may result from this. For example, about whether a particular “document” was intended to be a settled record of the deceased’s final wishes and/or continued to represent their wishes at the time of their death. Or as to the circumstances of the preparation of the document, including the deceased’s state of mind, capacity and/or influence of others. Or whether the document was produced by the deceased at all, for example those found on shared devices or which were delivered in messages from mobile phones or email accounts which other people had access to.
Whereas a search for a deceased’s Will is currently a search for an original document or at least a photocopy of one, I expect this will open up all sorts of opportunities for post-death fallings out over the control of, and access, to a deceased’s electronic devices and online accounts, with demands for disclosure and searches for evidence which may or may not be stored on devices or in cloud storage.
Marriage and Wills
Under the current law, a marriage or civil partnership automatically revokes any earlier Will made by either party, regardless of the parties’ knowledge or intentions. If no new Will is made, the default intestacy rules will apply upon death.
This rule will be abolished under the new Wills Act, allowing for a person’s Will made pre-marriage to continue in force and come into effect on their death.
This was a measure I advocated for in reply to the Law Commission’s consultation paper. I was pleased to see my name quoted in the final report and my argument taken on board. The existing rule is known to cause unintended and unjust consequences which the Court has no power to correct.
Although there is a risk that a testator may forget to update their Will after marriage, with the effect that their surviving spouse or civil partner does not stand to inherit, there are already other strong measures in place to help.
First, the beneficiaries of the pre-existing Will can execute a voluntary Deed of Variation to make tax-free provision for the surviving spouse or civil partner. Alternatively, an application to Court can be made under the Inheritance (Provision for Family & Dependants) Act 1975 for “reasonable financial provision” out of the estate, where the spouses and civil partners will generally be looked upon favourably.
We may therefore see a slight increase in those cases where a Will has not been updated post-marriage, although in my view that will be outweighed by the benefits for testamentary freedom.
Testamentary Capacity
When a Will is asserted to be invalid due to the testator lacking mental capacity (known as testamentary capacity) at the time, the Courts apply a common law, Judge-made test which has been in place since Banks v Goodfellow in 1870.
For most if not all other purposes the Mental Capacity Act 2005 reformed the law on capacity, introducing a modern test and language reflecting advancements in both law and medical science. The Mental Capacity Act is supplemented by a Code of Practice.
The new Wills Act will bring testamentary capacity under the umbrella of the Mental Capacity Act 2005 and introduce new, tailored practice requirements for capacity assessments.
This change may not affect the number of challenges to Wills based on testamentary capacity, but it will fundamentally change the way these cases are handled by lawyers and the medical experts who involved in the process.
In the early stages of the new legislation there may be more appeals against High Court decisions to the Court of Appeal, with a view to testing aspects of the new regime, before things settle down.
Undue Influence
The Courts have been keen to keep the bar raised high when it comes to Wills challenged on the ground of undue influence. To overturn a Will it is necessary for a challenger to prove on the balance of probabilities that a testator was “coerced” into making their Will against their true wishes.
Many claims are deterred, abandoned or lost at trial due a lack of direct evidence of coercion, despite it being accepted that abuse generally takes place behind closed doors and kept hidden from professionals who prepare Wills and/or witnesses of Wills.
It is not impossible to succeed if there is a suspicious Will combined with enough circumstantial evidence, but the Courts apply a presumption that it is “inherently improbable” that a Will results from undue influence.
The new Wills Act will reverse that presumption, so that where there is evidence which provides reasonable grounds to suspect that undue influence was exerted on the testator, it will be for whoever is advancing it to prove that was not the case.
This will undoubtedly encourage more claims based on undue influence, or at least compel executors and beneficiaries of disputed Wills to be more forthcoming with their evidence about their involvement in the preparation of the Will, rather than simply putting claimants to proof of coercion.
This change will also make the law on undue influence in relation to Wills more consistent with the law on undue influence around lifetime gifts, where a similar presumption already applies.
Wake Smith Solicitors offers a wide range of services on Wills, Trusts and Probate, including making and challenging a Will.
If you have a dispute or concerns about the validity of a deceased person’s Will, contact John Breeze on 0114 266 6660.