The Law Commission has published today (13 July) a major consultation on the potential for reforms to the law of wills in England and Wales. The detailed and comprehensive report can be found here, along with a summary and some useful infographics, and the consultation period runs until 10 November. The Law Commission particularly welcomes views from medical professionals on its plans on mental capacity and the general public on questions around their experiences of making a will.
We will be covering the Commission’s proposals in more detail in the next 39 Essex Chambers Mental Capacity Report in September, and I would urge readers to look, at a minimum, at the admirably crisp summary. For present purposes, I highlight a number of specific aspects of particular and immediate interest from both a mental capacity and CRPD aspects.
As the Law Commission notes, the legal test of testamentary capacity currently used is from the nineteenth century decision in the case of Banks v Goodfellow. The Commission provisionally proposes (in Chapter 2) that testamentary capacity should instead be governed by the capacity test in the MCA 2005, and be accompanied by a specific code of practice for testamentary capacity. For my part, it seems to me that this an obviously necessary step for a host of reasons (not least to stop the need to keep explaining to doctors and lawyers that they look to one test for purposes of statutory wills and an entirely different test for purposes of making a will outside the scope of the CoP).
The Law Commission discusses the position of statutory wills in Chapter 3 – including by reference to the requirements of the CRPD. The Commission provisionally concludes that substantive reform is not required (although this is, in part, in the context of the earlier suggestion in the Mental Capacity and Deprivation of Liberty report that the s.4 test should be amended to require particular weight to be given to the individual’s wishes and feelings). The Commission also solicits views as to whether any steps could be taken to reduce the cost and length of statutory will proceedings. In any consultation response, you may well wish to take account of what Charles J said (just too late, I suspect, for the Report) about the way in which parties and the Court need to approach the statutory will process in ADS v DSM  EWCOP 8.
Chapter 4 contains a detailed discussion of the arguments for and against the introduction of a scheme of supported will-making, in particular through the prism of the CRPD. The Commission also outlines in detail what a supported will-making scheme could look like – in parallel with the supported decision-making scheme proposed in the earlier Mental Capacity and Deprivation of Liberty project (indeed, the Commission concludes that the draft enabling power in the Draft Bill appended to that project is wide enough to encompass a specific scheme for support with will-making). For my part, I would really urge anyone interested in making concrete the Article 12 CRPD commitment to secure support for the exercise of legal capacity to respond specifically on this aspect.
The Law Commission set out a provisional proposal in Chapter 7 for a statutory doctrine of testamentary undue influence. This is of particular interest and potentially no little use in fleshing out the meaning of “conflict of interest and undue influence” in the context of Article 12(3) CRPD (which requires the implementation of safeguards to ensure that measures relating to the exercise of legal capacity are […] free of conflict of interest and undue influence.”