The Law Commission has unveiled a landmark report and a new draft bill proposing sweeping reforms to the laws governing Wills in England and Wales.

The legislation which sets out the requirements for a valid Will is the Wills Act 1837 which is nearly two centuries old. Therefore, it is argued that an overhaul is long overdue to reflect modern day life.

The reform proposes the following:

1. Relaxing the strictness of the requirements of a Will to comply with the Wills Act 1837

Under the Wills Act 1837, a Will must meet strict formalities to be valid, including being in writing, signed by the testator in the presence of two independent witnesses who must attest to the signature, and the testator must intend to give effect to the Will by signing.

The Law Commission recommends allowing courts to make an order to validate Wills that don’t strictly comply with the formalities, provided there is clear evidence of the testator’s intentions. Courts would consider material, such as voice recordings, videos or text messages, and must be satisfied that the testator’s wishes were unchanged at death.

2. Age for making a Will to be lowered

Under the 1837 Wills Act you must be 18 or over to make a valid Will. If a minor dies, their estate will pass under the rules of intestacy which, in most cases, means their estate will pass to their parents. This can cause problems where a child may be estranged from one parent.

The Law Commission has recommended that the age requirement for a valid Will be lowered to 16; and in exceptional cases where an application is made, for the Court to be empowered to authorise a child under the age of 16 to make a Will.

3. Rectification

A court can currently only ‘rectify’ a Will where the drafter mistakenly used the wrong language to describe the testator’s intentions (either by way of a clerical error i.e. an incorrect name or date; or due to a failure to understand the testator’s instructions).

The Law Commission has recommended that the Courts should have a general power to rectify a Will in situations where it is satisfied that the Will does not give effect to the testator’s intentions.

4. Changing the standard of proof in undue influence cases

A Will is invalid if the testator was coerced into making it. The burden of proof is currently on the person trying to prove that undue influence occurred by producing evidence to the Court that the testator was unduly influenced. It is often difficult in practice to prove this as such coercion very often happens in private and there will be little contemporaneous evidence of it.

The Law Commission has recommended that if there is evidence to provide reasonable grounds to suspect that undue influence has taken place, the Court will be able to infer that it took place.

5. Validity of gifts to witnesses

If there is a legacy in a Will left to someone who witnesses the Will; or to the witness’s spouse or civil partner, that legacy is invalid. This is aimed at preventing the witnesses taking unfair advantage of a testator.

The Law Commission has recommended that this be extended to provide that legacies will also be invalid if left to:

a) A witness’s cohabitant.
b) A person who signs the Will on behalf of the testator; and
c) The spouse, civil partner or cohabitant of a person who signs the Will on behalf of the testator.

However, the Law Commission has also recommended that in certain cases, the Court should have the power to ‘save’ a legacy in situations where it would otherwise be invalid by virtue of the above, if it is reasonable and just to do so.

6. Marriage revoking Wills

Wills are currently automatically revoked by the marriage of a testator (subject to them having been drafted in contemplation of marriage’).

Aside from the fact that this fact is not widely appreciated, this automatic consequence is particularly an issue where there is a ‘predatory marriage’. Even if someone lacks capacity to marry, whilst the marriage is ‘voidable’, it is not ‘void’ so in the eyes of the law the marriage has taken place and any existing Will a testator had in place will be revoked.

The Law Commission has recommended abolishing the rule that marriage will revoke a Will and have commented that spouses who would potentially ‘lose out’ should be sufficiently protected by the Inheritance (Provision for Family and Dependants) Act 1975.

7. Overhaul of the testamentary capacity test

The current test to determine whether someone has ‘testamentary capacity’ (that is, the capacity required to execute a valid Will) is set down by the case of Banks v Goodfellow. This requires the testator to:

  • Understand the nature and effect of making a will.
  • Know the extent of their property.
  • Appreciate the claims of those who might expect to benefit.
  • Not suffer from any disorder of the mind that distorts their judgment.

There is, however, another capacity test laid down by the Mental Capacity Act 2005 (“MCA”) which states that a person is presumed to have capacity unless it can be shown that they do not.

The Law Commission has recommended that the MCA test should apply for all assessments of testamentary capacity. It has stressed that this test does not appear to be higher or lower than the existing test; just a different test to be applied.

8. Electronic wills

The Law Commission has recommended that provision should be made for electronic Wills; and that witnesses may be present remotely.

It is not currently clear whether Wills which have been signed electronically comply with the Wills Act 1837, and most practitioners will err on the side of caution and obtain a wet ink signature.

However, during the Covid pandemic, there were issues where a testator wanted to make a new Will, but the restrictions prevented a witness from being in their presence when the Will was signed.

In order to protect people from undue influence which may be easier to assert when documents are signed electronically, or fraud, the Law Commission has suggested that a reliable system must be used if electronic Wills are introduced. This ensures that the testator’s electronic signature is linked to them; and there is protection to ensure that the Will can only be altered or destroyed by the testator or person authorised by the testator to alter or destroy the Will.

In conclusion the Law Commissions proposed reforms to the Wills Act aim to make a significant step towards the modernisation of making a Will. The aims are to reduce ambiguity, increase accessibility and better reflect the individuals’ intentions.

Next Steps...

If you’d like assistance with making a Will, please contact me on 01332 364436 or email m.wain@timms-law.com.

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