For quite some time, the antiquated Wills Act 1837 has proven inadequate in addressing the complex legal issues of the modern age, and reinterpretation beyond the Act’s original scope has often been required to better reflect the challenges of the present day.
The increasing number of legal disputes over Wills highlights just how pressing the need for comprehensive reform in this area of law actually is, a fact that led The Law Commission to take action back in 2017 when it solicited public opinion to inform the formulation of reform proposals for the Act.
Despite the project being briefly put on hold in 2021, work has now resumed, with an additional consultation on modernisation currently scheduled for September 2023.
But what exactly are the proposed reforms, and how will they seek to ensure the utmost clarity and fairness when it comes to distributing estates of the deceased in the future?
Key Issues
It cannot be overstated how crucial a person’s Will is. Not only does it serve as a means of dividing possessions, but it also expresses a person’s preferred arrangements for their body after their passing.
However, the lack of a valid Will, or the failure to leave one altogether, can greatly disrupt a family during their grieving process. Shockingly, research reveals that 40% of adults do not currently have a Will. In addition, even when a Will has been established, complications within the legal system can result in formal requirements not being met, ultimately casting doubt on a Will’s validity.
As it stands, the laws surrounding the execution of Wills in England and Wales is derived mostly from the Wills Act of 1837, and the criteria for assessing a person’s capacity to make a Will date back to 1870. To keep up with the advances in society, technology and medical knowledge made since the Victorian era, it is necessary to modernise the laws governing Wills.
Several changes will be particularly relevant to a comprehensive review. These include the aging population and the higher incidence of dementia; advances in medical understanding of various ailments, disorders and conditions that could affect a person’s ability to make a will; the increasing use and reliance on digital technology; differing patterns of family life, such as the rise in cohabiting couples and the prevalence of second families; and the increasing number of people having significant assets to protect and to whom they wish to pass them.
Key proposals
The Law Commission has proposed several crucial changes to the rules surrounding Wills. In particular, they suggest allowing courts to forego formalities in instances where a deceased’s wishes are clear, updating the test for mental capacity when making a Will to reflect current knowledge on conditions like dementia, providing statutory guidance for professionals conducting assessments on mental capacity, introducing new regulations to safeguard against undue influence, and lowering the age at which a Will can be made to 16.
Additional anecdotal feedback will be sought on personal experiences of disputing Wills, as will thoughts on whether the law that marriage revokes a Will should be upheld or abolished.
The Commission also hopes to open the door for the implementation of electronic Wills, which would more accurately reflect contemporary society, whilst seeking to gain a better understanding of the primary obstacles that people perceive prevent them from creating a Will.
The consultation contains proposals to give the Lord Chancellor the authority to allow email and text message, which has sparked some anxiety among certain legal experts who believe this could open up the possibility of digital Will forgeries or coercion by outside parties. On the other hand, supporters argue that expanding the range of formats in which Wills may be produced will encourage more people to create them.
Whilst the importance of having a Will is apparent, and it’s clear that methods for streamlining the process might help to make it more accessible to everyone, detailed proposals will be crucial before any reforms are put into place.
A code of practice that is published in plain, simple language will be required to educate those who are looking to draft a Will or who have questions about how the reforms will affect their existing Wills to ensure the consultation has the desired effect of encouraging more people to plan for their futures.
