Wills – new proposals could see the advent of the email Will

An estimated 40 per cent of adults die each year in the UK without making a Will. Sadly, this means that under the laws of intestacy, which apply where no Will exists, a deceased’s estate could go to blood relations that they may not have been close to, rather than loved ones they would have chosen to be their beneficiaries.

Against this background, the Law Commission is currently consulting on proposals that could mean that making a Will becomes easier and much more in tune with the way society works today. The law governing the creation of Wills is mainly set out in the Wills Act, 1837, and the law that specifies when a person has the capacity to make a Will was established in a case heard in 1870.

Clearly, much has changed in the intervening years. More people today have sufficient property to make it important to control who receives it on their death. Cohabiting is more prevalent, as are second or extended families. Dementia and other disorders that affect a person’s mental capacity to make a Will are now better understood.
 

What the consultation will cover

The Law Commission is consulting on proposals that include:

• lowering the age at which a Will can be made from 18 to 16
• changing the rules so that marriage wouldn’t automatically revoke a Will
• allowing the court to dispense with the formalities for a Will where it’s clear what the deceased wanted
• changing the test for capacity to make a Will, based on current understanding of conditions like dementia, perhaps using the test for mental capacity set out in the Mental Capacity Act, 2005
• providing guidance to professionals on whether a person has the mental capacity to make a Will
• introducing rules to protect a Will-maker (the proposed updated term for testator) from being unduly influenced by another person
• paving the way for the introduction of electronic Wills, and the admission of emails, text messages and voicemails as Wills.

 

What these proposals could mean in practice

Currently, Wills must meet strict criteria to be valid. The Law Commission proposes that courts should have the power to overlook minor errors in Will preparation. However, the judge would need to find that the deceased intended the document to be their final testament.

Electronic Wills might be permissible, as could a voicemail detailing your wishes, or even a text message setting out what you wanted to have happen to your estate after your death. Again, a judge would need to be convinced that this counts as sufficient evidence, and could be hard to prove. This change could lead to family arguments and much sifting of emails and texts in an effort to produce evidence that the deceased had changed their mind. On the other hand, being able to make a Will without needing to write it down could be an advantage on occasions.

Reducing the age at which a Will can be made from 18 to 16 would bring Will-making in line with other important decisions that can be taken at that age.

Many people are unaware that as the law stands, getting married automatically invalidates a Will (unless the Will was made expressly in anticipation of marriage). Changing this rule would mean that children from a previous marriage would be able to inherit.

To protect against undue influence, the current legislation prevents witnesses to a Will and their spouses and civil partners from being able to receive any gifts from it. The Law Commission’s proposal would offer further protection by extending this proviso to exclude any person living with a witness.

The consultation continues until 10 November and if you’d like to respond you can do so by email to propertyandtrust@lawcommission.gsi.gov.uk; or by post, to Damien Bruneau, Law Commission, 1st Floor, Tower, Post Point 1.53, 52 Queen Anne’s Gate, London, SW1H 9AG.
 

Our view

Whilst we would be in favour of any proposals that encouraged more people to take the important step of making their Will, it remains to be seen what changes are finally implemented. As with any new legislation affecting families, there will need to be sufficient safeguards introduced to protect the interests of the old and vulnerable members of our society.