Reforms unveiled to modernise wills law

Electronic wills, updated mental capacity standards and lowering the minimum age are among newly proposed reforms aimed at bringing Wills law into the 21^st century.

Thrings’ Private Wealth Disputes expert Georgia Wookey takes a look at the report’s much-anticipated recommendations that propose what would be most substantial overhaul of legislation since the Victorian era.

The report

Forming the central part of a new report from the Law Commission - “Modernising Wills Law” – the recommendations, and the accompanying draft bill, would seek to replace the Wills Act 1837 with a fit-for-purpose new Wills Act that would be able to meet the demands of modern society.

With the impact on capacity stemming from longer life expectancies and media advances, and the constant march of technology, reform is clearly needed – with the Commission’s wills project having been active since 2016.

What is being proposed?

Aimed at supporting the ability for an individual to determine how their estate will be distributed after their death, as well as protecting those individuals from abuse, the recommendations for reforms include:

• Abolition of automatic will revocation upon marriage: Currently, marriage automatically revokes an existing will, but under the reforms, this rule would be removed to prevent exploitation, particularly in cases of "predatory marriages," where individuals may marry vulnerable persons to take financial advantage of them financially in life and in death.
• Introduction of dispensing powers: Courts would be granted the authority to recognise wills that don't meet formal requirements if there is clear evidence of the deceased's intentions. This includes considering electronic documents, videos, and audio recordings as valid expressions of testamentary wishes.
• Recognition of electronic wills: The recommendations include support for the future acceptance of electronic wills, provided that secure and tamper-proof systems are in place to prevent fraud and undue influence.
• Reform of undue influence doctrine: A new statutory doctrine is proposed to address undue influence in will-making with courts being allowed to infer undue influence based on surrounding circumstances, rather than requiring direct proof, thus offering better protection to vulnerable individuals.
• Update to mental capacity standards: The standard for assessing a person's capacity to make a will would align with the arguably more stringent test in the Mental Capacity Act 2005 and replace the 1870 Banks v Goodfellow test (which has only in recent years been confirmed to be the correct test for testamentary capacity).
• Lowering the minimum age for making a will: This would be reduced from 18 to 16, acknowledging the maturity and decision-making capabilities of younger individuals in certain circumstances.
• Restrictions on witnesses and beneficiaries: To prevent conflicts of interest, the proposed reforms include extending the prohibition of gifts to witnesses to include their cohabitants and others closely connected to them.

Georgia Wookey, Senior Associate in Thrings’ Private Wealth Disputes team, said: “Having a valid will in place is an extremely important box to tick for people in today’s society and yet, unlike other areas, the law has refused to keep pace, staying the same for nearly two centuries.

“These proposals show there is a definite need for reform, and it will be interesting to see how the government receives this report and its recommendations and whether the draft Bill influences much needed new legislation in the coming years.

“Whilst it is clear that the proposed reforms have been carefully thought out, that’s not to say that they are perfect in how they are presented. There may be conflicts between some of these recommendations. For example, between the potentially more accessible, relaxed formality of an electronic will and the need for a reliable and secure system with safeguards in place to protect the elderly, more vulnerable and the non-tech savvy.

“It will be key that these are properly considered and ironed out before they are introduced, and we will be keeping a close eye on any developments. For now, however, the law remains unchanged.”

Thrings’ Private Client and Private Wealth Disputes lawyers are experts in supporting individuals and families with a range of personal matters that are important to you, ensuring you and your estate are prepared for the future. Whether it relates to succession planning, wills, contentious probate, or you are facing conflict over an inheritance or have concerns over someone’s capacity, they will be there for you. To find out more, please get in contact.