The Law Commission of England and Wales has published its final report 'Modernising Wills Law'. Its recommendations represent the biggest overhaul of the law governing Wills in 200 years.
The stated aim of the Law Commission project was to reform and modernise the law so that it supports the exercise of testamentary freedom, protects those making a Will from undue influence and fraud and increases clarity and certainty in the law. The Report contains 31 recommendations:
A new Wills Act
- To replace the Wills Act 1837, consolidating provisions about wills found in other legislation into one place, with simplified and modern language.
Age
- The age at which someone can make a valid will to be dropped to 16 years old.
- The court to have the power to authorise a will for someone younger than 16 years old where the child is competent, has substantial assets and might not live to their 16th birthday.
Testamentary Capacity
- The test of capacity in the Mental Capacity Act to apply to testamentary capacity as well, overriding the Banks v Goodfellow test.
- The statutory presumption of capacity in the Mental Capacity Act should apply to testamentary capacity. There will be guidance in the Mental Capacity Act Code of Practice explaining the elements of the Banks v Goodfellow test.
- The introduction of a Code of Practice for anyone preparing a will or providing an assessment of capacity, covering (1) when capacity need to be formally assessed; (2) who should assess capacity; (3) how capacity should be assessed; (4) instructions from solicitors to any third-party assessors; (5) record keeping; (6) how long a formal capacity assessment should take.
Statutory Wills
- Greater emphasis to be placed on wishes and feelings when establishing best interests in relation to a statutory will.
- The removal of the current limitation against a statutory will having effect in relation to immoveable property outside of England & Wales or moveable property where the testator is domiciled outside of England & Wales.
- The age limit to be reduced to 16 years old in line with the above proposal.
Privileged Wills
- To be retained for those serving in the British Army on active service and civilians subject to service discipline who, if they were serving in the armed forces, would have been on active service.
Electronic wills
- Support for electronic wills with additional requirements about the technology used, such that: (1) the testator (or person signing on the testator's behalf) and the witnesses are linked to their signatures at the time of signing; (2) the original or authentic will is identifiable from copies of it; and (3) the original or authentic will is protected from unauthorised alteration or destruction.
- Compulsory registration of electronic wills is rejected on the basis that there are other ways of ensuring that there is an authoritative and secure version of the will, such as asymmetric cryptography, blockchain or electronic archiving services.
Knowledge and approval
- The requirement for knowledge and approval should be put on a statutory footing to clarify its scope. The Commission's recommendation adopts the formulation by Lord Justice Chadwick in Hoff v Atherton that "the testator did know and approve the contents of his will – that is to say that he did understand what he was doing and its effect".
- The rule in Parker v Felgate to still apply – where a testator has the requisite capacity at the time of giving instructions and the will reflects those instructions, the will is deemed to be valid even if the testator did not have the requisite capacity at the time of signing.
Undue influence
- Recommended reform of the law governing undue influence to ensure parties are not deterred from alleging undue influence for fear of cost consequences, even where there are suspicious consequences to justify a claim.
Formalities
- The court to have the power to dispense with the formalities in section 9 Wills Act 1937 and to prove a valid will based on document(s) which express testamentary wishes at the time of death, including electronic documents, as well as video and sound recordings.
- Rejection of a proposal to remove the requirement for witnesses to attest when signing a will in the presence of the testator.
- A gift to someone, their spouse / civil partner or their 'cohabitant' to be held void if that person witnesses the testator's signature or signs the will on behalf of the testator under section 9(1)(a) Wills Act 1937. However, the court should have the power to save such a gift if 'just and reasonable'.
Interpretative provisions
- Alignment in respect of charitable and non-charitable gifts such that a gift to an entity which ceases to exist or has merged with another entity can be saved unless a contrary intention appears in the will.
- Rejection of a proposal that gifts to office holders should be interpreted as gifts to the entity, rather than personal gifts.
- Rejection of a proposal that section 33 Wills Act 1837 should apply to all gifts such that any gift to a beneficiary who has pre-deceased should pass to the deceased beneficiary's child/ren.
Rectification
- Section 20 Wills Act 1837 to be extended beyond just a clerical error or failure to understand the testator's instructions, to allow rectification where a will does not reflect a testator's intentions as to legal effect as a result of a drafting error.
- Rejection of a proposal to extend the time limit for rectification claims on the basis that the court has the power to allow a claim out of time where appropriate.
Ademption
- Ademption, which is the rule that a specific gift in a will
fails if the testator no longer owns the gifted property when they
die or the nature of the gift has changed, should not apply in
circumstances where:
- gifted property is disposed of by attorneys acting under a Lasting Power of Attorney; or
- a testator makes a specific gift of property where the subject matter of the gift is subject to a contract for sale (including a conditional or statutory contract) or an option to purchase, subject to a contrary intention appearing in the will.
- If property that is the subject of a specific gift is destroyed more or less contemporaneously with the testator's death and it cannot be determined which happened first, the beneficiary should be entitled to the value of the property, subject to a contrary intention appearing in the will.
Revocation
- Sections 18 and 18B of the Wills Act 1837, providing that a marriage or civil partnership revokes a will, should be abolished.
Mutual wills
- The Inheritance (Provision for Family and Dependants) Act 1975 to be amended to provide that financial provisions can be made out of property subject to a mutual wills arrangement.
The Government has welcomed the report, alleging that the current law is 'outdated' and we 'must embrace change'. The Government says that it will make further announcements in due course.
Please see here for the full Report and here for the Law Commission's summary.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
