Following an initial public consultation in 2017, and a supplementary consultation in 2023, the Law Commission has today produced a Report in which it makes recommendations for the reform of the law of wills.
The Report is the first comprehensive review of the law relating to wills for almost 200 years, and its proposed changes would mark a significant departure from the Wills Act 1837 and related case law.
The consultation gathered views on a number of issues relating to making a will, including the use of electronic wills and the rule that a marriage or civil partnership revokes an existing will.
The consultation aimed to reform the law with the following objectives in mind:
- Supporting the exercise of testamentary freedom (i.e. the ability to leave one's assets to one's intended beneficiaries);
- Protecting testators (i.e. those making a will), including from undue influence and fraud; and
- Increasing clarity and certainty in the law where possible.
The Report contains the following key recommendations for law reform, aimed at meeting those objectives:
- It should be possible for a court to dispense with the formality requirements in relation to an invalid will, where it is clear whom a testator wishes to leave their assets to, but there is a deficiency in the formality requirements (e.g. witnessing requirements);
- The age at which someone can make a valid will should be reduced from 18 to 16;
- It should be possible for the court to authorise a child under 16 to make a will where appropriate;
- The court should be able to rectify a will where it is clear that the will does not give effect to the testator's intentions, because the drafter failed to understand the meaning or effect of the language used in the will;
- 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, to provide better protection to testators (particularly vulnerable testators);
- The rule invalidating a gift in a will to a witness, or to their spouse or civil partner, should be broadened so that gifts in a will are also invalid where they are made to: the cohabitant of a witness; a person who signed the will on behalf of the testator; and the spouse, civil partner or cohabitant of a person who signed the will on behalf of the testator;
- The court should have the power to ‘save' a gift to a witness or person who signs on the testator's behalf if the court thinks it is just and reasonable to do so;
- The rule that marriage or civil partnership revokes a will should be abolished;
- The test set out in the Mental Capacity Act 2005 should apply to all assessments of capacity to make a will;
- A presumption that a person has mental capacity unless it is shown that they do not should apply in the context of making a will;
- There should be a code of practice on testamentary capacity issued under the Mental Capacity Act 2005 on assessing capacity, and will drafters and professional/paid capacity assessors must have regard to it;
- Electronic wills should be capable of being legally valid, in the same way as paper wills, provided that they meet an additional formality requirement: that a reliable system is used to ensure the security of the Will.
The Report also contains a draft bill which implements the recommendations for reform.
Readers will see from the above recommendations that the Report contains hugely significant proposals to change the law relating to wills. If the government decides to pursue its recommendations, careful scrutiny will be necessary to ensure that the Law Commission's stated aims are met.
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