The Law Commission’s Recommendations to Reform the Law of Wills

Aiming to ‘modernise’ the law governing Wills, the Law Commission have recently published its recommendations within its Final Report to increase clarity and certainty surrounding the law of Wills.

Accompanying the Report is also a draft Bill for a new Wills Act, which is with the Government to consider. This has come from the general consensus that the current Wills Act is outdated, being governed primarily by the Wills Act 1837.

The Law Commission’s recommendations address important issues and questions, including:

Testamentary Freedom:

• Testamentary freedom refers to an individual’s ability to determine how their estate will be distributed after they pass away.
• Currently, the law is very strict: if a testator does not comply with the formality rules, their Will is invalid, even if their intentions were clear. The Law Commission have proposed to give the court the power to dispense of these formality requirements on a case-by-case basis, meaning if the court is satisfied that the document reflects clear testamentary intentions, they will deem the Will to be valid.
• The Law Commission have also proposed that the age to make a Will is reduced to 16 (as opposed to it remaining at 18). This would be beneficial to children who are terminally ill who have a parent or parents that do not play an active role in their life. This change will also align the law of Wills with other laws concerning decision-making where the age of capacity is 16.

Protecting Testators:

• The Law Commission have stated that the current law does not adequately protect vulnerable people from financial abuse. To tackle this, they have recommended:
  • Abolishing the rule that a Will is revoked when a testator marries or enters into a civil partnership, and
  • Allowing courts to infer that a Will is invalid based on undue influence (coercion) where there is reasonable evidence to suspect this.

Clarity and Certainty:

• To keep up to date with the modern age, the Law Commission have recommended that within its newly proposed draft Bill, the new law allows for electronic Wills to be valid (although, there would need to be specific requirements to ensure they are reliable)
• To clarify the position on testamentary capacity, the Law Commission have put forward the recommendation that only one test should apply and that test being the modern test in the Mental Capacity Act 2005. This will remove the ‘common law test’ and mean only one test will apply.

Their Report and draft Bill are currently with the Government for their consideration and comments. We will update you on its position as this progresses.