Reform of the law on making a will
The legal framework for making a will has been largely unchanged since the introduction of the Wills Act 1837.
Imaginative judicial interpretation has often been required to apply its provisions to modern circumstances. The rise in disputed wills demonstrates that there is a need to reform this area of law.
In 2017, the Law Commission published its eagerly awaited consultation, seeking views to inform proposals for reforming the Wills Act 1837.
The Law Commission consulted on proposals to:
- enable the court to dispense with the formalities for a will where it’s clear what the deceased wanted
- change the test for capacity to make a will to take into account the modern understanding of conditions like dementia
- provide statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will
- make new rules protecting those making a will from being unduly influenced by another person
- lower the age that a will can be made from 18 to 16
We support the majority of the Law Commission’s proposals to bring the law into the 21st century.
Our key comments are:
We support the proposal to adopt the definition in the Mental Capacity Act 2005 (MCA) for testamentary capacity.
Adopting this legal test will address the current issues identified by the Law Commission, where different tests are applied depending on whether:
- a testator is executing a will, or
- if one is being made once a testator loses capacity to make a will themselves
We strongly agree that a code of practice would be helpful in providing guidance to the court, and professionals (legal and otherwise), as to how capacity should be assessed.
A clear code of practice, written in plain English will also inform lay persons who may be supporting loved ones to make a will, or who may question how their capacity may be assessed.
We agree that it's sensible to keep the making of a statutory will within the jurisdiction of the Court of Protection.
However, we highlight that a comprehensive review of the law of wills should include a full review of the framework and operation of statutory wills.
We agree that the fact that a person had not made a will before losing capacity should not preclude the making of a statutory will on their behalf.
Many people make a will in later life and it cannot be assumed that a person makes an active choice not to make a will.
We’re concerned that 40% of people die without making a will each year.
We therefore agree with proposals for courts to be given a dispensing power to recognise and give legal effect to a testator’s intentions, where strict formalities for making a valid will have not been followed.
However, we recognise that wills are discretionary, and legal reform can only go so far.
There are several reasons why individuals may actively choose, or remain indifferent to making a will, including age and cultural perceptions of death.
To encourage the take-up of wills, we recognise that there is a need to improve the methods available to approach the issue.
We are therefore not opposed to the possibility that wills may, at some point, be made electronically.
However, we urge caution against proposals to usher in a fully digital process at this time.
Without access to a detailed proposal for how a digitised system might operate in practice, and guidance to accompany such, it is difficult to picture how this could be implemented.
The Law Commission has paused to undertake a review of the law concerning weddings but remains committed to completing its work on wills – the timetable for which remains under review.
We will update this page as the project develops.
What we’re doing
Our expert Wills and Equity Committee continues regular engagement with the Law Commission.