Recommendations to modernise wills law to promote testamentary freedom

Changes to modernise wills law and to promote testamentary freedom – the cornerstone of succession law in England and Wales that enables individuals to determine how their estates will be distributed after their death – are proposed today in recommendations published by the Law Commission.

The law governing wills largely dates from the Victorian era. It has not been comprehensively reviewed for nearly 200 years, and today’s report makes recommendations to clarify the law and to ensure it is fit for purpose in the modern age.

Reform is needed. Most people will live longer than their ancestors did, and as a consequence, more people will suffer from ill health and a decline in their mental capacity. The property the average person owns may be more valuable than it was in the past. Not so long ago, documents would have been in paper form only, but documents in electronic form are now far more prevalent.

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.

The report has been laid before Parliament along with a draft bill. It will now be for the Government to decide whether to implement the recommendations.

Full details of this project including the final report and a summary are available on the Wills project page.