Modernising wills
Electronic testamentary dispositions and deterring predatory marriage
If you have ever wondered about the need to update and modernise legislation, compare this:
with this:
The Wills Act 1837, though amended by subsequent legislation, is still law in England and Wales. Its interpretation relies on 19th century case-law. What the Law Commission proposes today is that the 1837 act should be replaced by a new statute, which the government’s law reform advisers have helpfully drafted. As you can see, the proposed replacement for section 1 is rather easier to read.
We have always taken it for granted that, by making a valid will, we can decide what will happen to our property after we die. That’s still broadly true — although the courts may award reasonable financial provision to close family members from a deceased’s estate. But testamentary freedom has not always applied in England and Wales and is not enjoyed to the same extent in other legal jurisdictions.
The report published today — more than 560 pages across two volumes, together with an illustrated 15-page summary — is the primary responsibility of Professor Nick Hopkins, the law commissioner who has worked on it for nearly 10 years (along with much else). But what’s a decade in the life of a statute that, if the government decides to implement the commission’s recommendations, will have survived for 190 years?
Hopkins said:
Many people will make a will and many others may benefit from someone else’s will. Wills are also a significant source of charitable funds, with many charities receiving a large portion of their funding from legacies left to them.
Our recommendations will modernise wills law to promote testamentary freedom, bringing with them greater certainty, clarity and fairness.
Recommendations
These include:
Enabling electronic wills. It will be possible for these to be witnessed remotely. However, a reliable system will be needed to link the testator (or the person signing on the testator’s behalf) and the witnesses with their signatures at the time of signing; to identify the original or authentic will from copies of it; and to protect the original or authentic will from unauthorised alteration or destruction.
Abolishing the law that revokes a person’s will when they marry or register a civil partnership. There have been cases where an elderly person has been coerced into a predatory marriage. That automatically revokes any will made by the elderly person and means that the new spouse is likely to inherit on the resulting intestacy, disinheriting the testator’s children.
Allowing courts to validate an informal will. This will provide a remedy in cases where testators have failed to comply with the formal requirements but their intentions are nevertheless clear. The court will be able to exercise the power where it decides that the will represents a person’s testamentary intentions.
Reducing the minimum age at which a person can make a will from 18 to 16. In addition, the family court should have the power to authorise a child under the age of 16 to make a will if it decides the child has Gillick competence.
Simplifying the test of mental capacity. The test in the Mental Capacity Act 2005 will replace a similar rule in the 1870 case of Banks v Goodfellow
Reducing the risk that vulnerable people will be coerced into making a will. It will be easier than at present to prove that a will was made under undue influence and that a bequest should be set aside.
The word “testator”, I should perhaps add, is now to be treated as gender-neutral.
Update 0915: The government has welcomed today’s report.
Sarah Sackman, the courts minister, said:
The government recognises that the current law is outdated, and we must embrace change, but the guiding principle in doing so will be to ensure that reform does not compromise existing freedoms or protecting the elderly and vulnerable in society from undue influence.
The government will make further announcements in due course, once it has given the report the detailed consideration it deserves.
Though ministers have not committed themselves to legislation, it’s unusual for them to issue an instant response like this. It suggests a willingness to take action.