The law governing the making of Wills dates back to the 19th century. The age of the population has increased since then, dementia is widespread but our medical understanding of mental capacity has advanced. Family units have also changed, second marriages, children from previous relationships and cohabitees are now more common. Our estates are getting bigger and we rely heavily on digital technology and electronic communication.
A consultation published by the Law Commission is therefore welcome to ensure that our laws are fit for purpose and relevant in the 21st century.
It is estimated that 40% of adults die without having made a Will. It is important to make a Will because the intestacy rules which govern what happens to an estate where there is no Will, do not necessarily reflect the deceased’s wishes. The ‘outdated’ law is potentially a reason for the reluctance to make Wills, and the purpose of the consultation is to determine whether the law can be modernised and improved to do more to encourage and facilitate people in making a Will.
*Law Commissioner, Professor Nick Hopkins commented on the consultation to say:
“Making a Will and passing on your possessions after you’ve died should be straight-forward. But the law is unclear, outdated and could even be putting people off altogether. Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law. That’s not right and we want an overhaul to bring the law into the modern world.”
What’s involved in the consultation?
The Law Society will consider a number of key issues during the consultation, including:
- Giving courts greater flexibility to uphold Wills that do not meet the strict legal requirements;
- Replacing the current Victorian mental capacity test with the modern Mental Capacity Act 2005 test to establish capacity to write a Will;
- Reducing the age at which someone can make a Will from 18 to 16; and
- The possibility of online or electronic Will writing.
What does the consultation mean for people making Wills in the future?
The consultation is an encouraging step to modernising the law but some of the proposals raise challenging questions. Changes could add to family arguments as dissatisfied beneficiaries search their relative’s communications for evidence that they had changed their mind. It will also be important to urge caution to ensure that older or vulnerable people are able to make their own decisions wherever possible, free from pressure and coercion. These issues will need to be examined carefully.
The consultation will run until 10 November 2017, watch this space for further updates.
For more information on Wills and the new consultation, please contact Holly Jones on 0161 475 1206.
*Comments in this blog are taken from the Law Commission.