Law Commission consultation on making a will – Law Society response
The Law Commission last consulted on wills reform in 2017, before the project was paused.
The Law Commission is re-consulting on this issue for two reasons:
- increasing awareness of predatory marriage
- digital developments in relation to wills
Increasing awareness of predatory marriage
Concerns have grown about “predatory marriages” over the past few years.
As a result, the commission now believes these concerns may cast doubts on whether a marriage or civil partnership should continue to revoke a will.
Predatory marriage is a form of financial abuse where a person enters a marriage with someone who is elderly or who lacks mental capacity.
As marriage or civil partnership revokes a will, their spouse or civil partner may inherit most if not all their estate in the absence of a new will.
Digital developments in relation to wills
The last few years have seen increasing recognition of the use of digital documents and signatures in other contexts, as well as huge developments in technology.
The COVID-19 pandemic also necessitated an increased uptake of technology to facilitate will-making.
The commission is consulting on:
- whether electronic wills could, or should, be able to comply with the formal requirements for a valid will
- whether, and how, it should be possible for wills to be executed or made using electronic means
- whether wills should be able to be stored and admitted to probate solely as electronic documents
Revocation by marriage or civil partnership
The commission is gathering evidence on the prevalence of predatory marriage and the need for protection of vulnerable testators from financial abuse.
Electronic wills need to have an appropriate level of protection to address concerns about the risk of fraud and undue influence.
It is important to make sure that people who would struggle to make a will electronically are not disadvantaged.
There is a need for further action to prevent the exploitation of vulnerable people through the marriage and wills process.
It is difficult for us to take a clear view on whether section 18 of the Wills Act 1837 should be revoked.
Our survey found divided opinion on the issue of marriage revoking a will.
Overall, 42% of solicitors agreed the law should be changed to stop marriage from automatically revoking a will.
The consultation closed on 8 December 2023.
The Law Commission will analyse the responses to the consultation, which will inform the development of its final recommendations for reform.
The remaining stages of its work will be to develop its final policy, prepare a final report and instruct parliamentary counsel to draft a bill giving effect to the recommendations.