The Law Commission is consulting on reform of the law of wills. Mostly dating back to 1837, it could do with a coat of looking at. Things have changed since then. We are living longer. We are suffering more from dementia but we have better understanding of disorders and diseases that affect capacity to make a will. We are using and relying on digital technology to communicate and record important decisions. Our lives are a different shape too, with more cohabiting couples and more people having second families. And even us ordinary folk have built up reasonable assets. Clarity about what happens after death is more important than ever.
Formalities- the suggestion is that flexibility could enable courts to relax the formalities of a will. There could be evidence in letters, notes, emails or texts of what the Testator wanted and it is a shame that not having the right wording or witnesses can scupper their intentions. When it is clear what the person making the will (the Testator) intended, why should it matter that they have not complied with the legal bits? The obvious problem here is that it may encourage more arguments over texts and emails and make things worse instead of better. How many times have you misinterpreted what someone meant in a text or email?
Capacity - We need to reflect modern understanding of medical conditions such as dementia. This could result in a new test specifically linked to these conditions, where the testator makes a will with new guidance and support.
Better guidance for professionals- Doctors and lawyers could have clear statutory guidance when assessing capacity, which could reduce litigation after which sometimes there is little or nothing left to inherit! Too often reports are prepared which take sides in a dispute, rather than recording facts in an objective way.
New rules could help to protect testators from being unduly influenced by another person. In particular, elderly and vulnerable testators should be better protected from fraud.
Lowering the age at which a will can be made from 18 to 16. For example, at 16 or 17, someone might have significant assets that they don’t want to pass to an estranged parent under intestacy rules.
The commission have said they will look at how technology can be adopted in making a will. It may become easier, cheaper and more convenient to do it electronically, though some practical challenges and safeguards would be considered and this loosening of safeguards would worry me.
The consultation closes in November, and the conclusions, final recommendations and a draft Bill, are expected to be published in early 2018. We will come back and look at what they suggest. In the meantime, come and see us to do it properly under the existing rules, old fashioned or not!