The current law governing the interpretation and validity of wills in England and Wales is set out in the Wills Act 1837 as amended by other statues. Even though it has been around for almost two centuries, two thirds of the population still do not have a will. The test for capacity to make a will is set out in a slightly more modern case called Banks v Goodfellow from 1870 but other areas have seen many changes since then for example the introduction of the Mental Capacity Act 2005 which covers capacity to make Lasting Powers of Attorney and other decisions.
We have recently seen announcements to revise the rules on intestacy (how an estate is distributed when the deceased did not make a will) and now the Law Commission is planning to make changes to the law on wills and testamentary capacity to take account of changes in social norms, modern technology and medicine.
A large amount of legal documents are now created electronically and many more being considered for example Lasting Powers of Attorney and conveyancing, so maybe digital wills are the way forward!
One of the aims of the reform is to reduce the number of wills being challenged and to make it easier to rectify will-drafting mistakes after death given the recent flurry of cases through the courts but let us not forget the proposal for regulating will-writing was rejected last year.
There are also plans to address the requirements for a valid will. At present, the will needs to be in writing and signed by the maker in the presence of two witnesses and the maker must also witness the signature of the witnesses whereas only one witness is required for any other legal document.
The Law Commission’s conclusions, recommendations and draft bill are expected in early 2018 so watch this space!
For advice on writing a will, please contact our Wills and Wealth Planning team on 01625 442148.