After nearly 10 years, much longer than most projects (and caused in part by the then-government requesting a delay at one stage so the Law Commission could work on another project), the Law Commission published on 16 May its report on modernising wills.
As the Law Commission press release makes clear. recommendations include:
- Enabling electronic wills: The Wills Act 1837 does not contemplate the possibility of electronic wills. We recommend that electronic wills should be valid, subject to them meeting an additional formality requirement that will protect the testator and the security of the will.
- Abolishing the law that revokes a person’s will when they marry or enter a civil partnership: We are concerned that this rule is motivating “predatory marriages”, where someone marries a person in order to inherit from them, as a form of financial abuse. Most people are unaware that their will is automatically revoked when they marry or enter a civil partnership. We recommend that the automatic revocation rule should be abolished.
- Making it easier for a person’s wishes to be given effect: Currently, a will that does not comply with the formality requirements in the Wills Act 1837 is not valid even if it is very clear what a person wanted to happen with their property after they died. Where a person’s intentions are clear, then there should be a mechanism making it possible to give effect to those intentions. We recommend that courts should have the power to make an order providing that a document or recording is treated as a formally valid will, which would then govern what happens to the deceased person’s property.
- Reducing the minimum age at which a person can make a will from 18 to 16: Currently, a person must be 18 years old to make a valid will. A child who is terminally ill and who does not wish one of their parents to inherit from them or decide what happens to their body when they die, for example because the parent has not played a role in their life, has no ability to set out their binding wishes. Other countries allow children under 18 to make wills, and the law presumes that children from age 16 have capacity to make other types of decisions We recommend that people should be able to make a will from 16.
- Clarifying the requirement for mental capacity: There are currently two tests which apply to the question of testamentary capacity. Which applies depends on whether the question is if the person has capacity to make their own will, or if the Court of Protection has the power to make a will on their behalf. This confusing anomaly is the product of the law’s historical development. We recommend that only one test should apply: the modern test in the Mental Capacity Act 2005.
- Increasing protection to those coerced into making a will: It is too difficult to challenge the validity of a will based on undue influence, meaning that someone made a will that they did not want to because of another person’s influence. Evidence of the undue influence can be hidden because it often happens behind closed doors and by someone close to the person making a will. As a result, the law is not adequately protecting vulnerable people from financial abuse. For that reason, we recommend that it should be possible for the courts to infer that a will was brought about by undue influence where there is evidence which provides reasonable grounds to suspect it.
I will write more about this in due course. For now, what I would say is that it is required reading for anyone interested in not just wills (which should be everybody), but also those who are interested in thinking about how the CRPD can be given effect in English law, how the presumption of capacity works retrospectively, and the weight to be placed on a person’s wishes and feelings and best interest decision-making more generally.
It is a very long report, of necessity, but it is accompanied by a much shorter summary report, and also (really importantly) an easy read version. Given that a significant thrust of the report is to try and maximise the abilities of people with cognitive impairments to make their own wills, giving an easy read version of the report gives a very good model for how to continue.
