The legal landscape for contesting Wills is set to change following significant Law Commission recommendations for change to the Wills Act.
Few dispute that the Wills Act, which came into effect on 1 January 1838 - is outdated (Queen Victoria ascended to the throne the year before). Today, we live and die in an age of technological advancement, blended families, an ageing population and increasingly complex estates. Individuals are also more inclined to bring legal action if they feel aggrieved at the lack of inheritance following a loved one’s death.
One of the aims of the Law Commission is that with clearer rules and certainty for testators and their loved ones, fewer disputes will arise.
What’s proposed?
The recommendations, together with a draft Wills Bill, were published last spring following a long-running Law Commission project. The key aims are to support individuals’ freedom to make a Will; protect them from fraud and undue influence; and increase clarity and certainty in making Wills. Here, we look at the headline recommendations:
Effect of marriage
Under existing rules, if a person marries or enters a civil partnership, any existing Will they have is automatically revoked (unless it is made specifically in contemplation of the legal union).
It is proposed to abolish the rule to reduce the risk of predatory marriages - where someone preys on wealthier (often older) vulnerable individuals and marry them in order to inherit their estate.
Testamentary capacity
A person must have testamentary capacity to make a valid Will; and there is a statutory presumption that they do have testamentary capacity. If their solicitor has concerns that the individual may lack the required capacity, they are expected to consider obtaining an independent capacity assessment to certify whether the client has testamentary capacity.
The numbers of disputes involving capacity has soared in recent years, reflecting the ageing population and the rise in dementia diagnoses. The Commission has proposed removing the traditional common law test for testamentary capacity and adopt the broader capacity test under the Mental Capacity Act 2005.
Put simply, this test requires that the individual must be able to make a decision for themselves in relation to the matter at the material time. The change would bring welcome consistency with other areas of law; greater certainty for Will-makers and legal advisers; and reduce the risk of capacity-related disputes following death.
The Commission wants to retain the statutory presumption of testamentary, but has recommended that a code of practice on testamentary capacity should be introduced (with detailed guidance).
Formalities
A Will must meet strict formality requirements under Section 9 Wills Act, otherwise it will be invalid. The Commission proposes relaxing the rules in certain circumstances by giving the courts a ‘dispensing power’ which would allow the Will to be upheld. The exercise of such a power should, it adds, be limited to cases where records demonstrate the deceased’s testamentary intentions.
There’s no doubt that giving the courts a dispensing power will help bring many Will disputes to an early conclusion. But the legislation must be clearly and carefully drafted, to avoid further risk of disputes.
Electronic Wills
Provision for electronic Wills is also recommended, with appropriate safeguards. The Commission’s view is that electronic Wills should still be treated as physical Wills as far as execution is concerned, with additional requirements (including the use of a “reliable system”).
We welcome any development that will embrace technology in Will-making, but it will present further challenges. For instance, the elderly are not typically tech savvy and remain vulnerable to the risk of undue influence and fraud. Detailed guidance on appropriate safeguards and what will constitute “reliable systems” is necessary.
Age for testamentary capacity
It’s proposed to lower the age of testamentary capacity to 16. The Commission found most consultees considered that young people of this age had sufficient maturity to make a Will and to meet both capacity tests.
Young people and their families, particularly those in challenging situations, such as illness or family breakdown, will benefit from this change – so long as appropriate safeguards are provided.
We will write more on these issues when further information is published.
How we can help
Contact Samantha Evans for specialist advice on contentious Wills and probate. Please call the team on 01562 820181 or email samantha.evans@mfgsolicitors.com.