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Consultation on Wills – A Welcome Step to Modernisation?

20 Jul 2017

The Law Commission recently published its Consultation on reforming the law on Wills on the basis it is not as clear or protective as it could be and needs to be modernised to take account of the changes in society, technology, and medical understanding.

The proposals include:

  • Giving the Court greater flexibility to uphold Wills that do not meet legal requirements but where the Testator has made clear their intentions.
  • A new test for testamentary capacity under the Mental Capacity Act 2005 to take into account the change in medical thinking brought about by the increased incidents and understanding of senile dementia. The existing case law test does not cope well with patients whose mental capacity varies from day to day or is declining only gradually.
  • Providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a Will.
  • Lowering the age which a person can make a valid Will from 18 to 16 years old.
  • Introducing the availability of online or electronic Will writing in the future.

The Consultation paper seeks the feedback from the public on a range of issues around how Wills are made and how the law protects Will-makers from fraud. The Consultation closes on 10 November 2017.

The Law Society of England and Wales has welcomed the Consultation as a step towards updating our Will making laws to keep them fit for purpose in the 21st Century. We will await with interest the outcome of the Consultation and any proposals that are to be implemented. There appears to be some merit in some of the proposals, for example, allowing the Court more flexibility when there are small technical errors in a Will which means the Will is invalid but the deceased person’s wishes are clear and therefore should be permitted to take effect. However, introducing the possibility of putting in place a Will more flexibly may lead to increased fraud and undue influence so sufficient protection for testators will need to be in place.

We would recommend that legal advice is always sought in relation to Wills to ensure they are drafted in such a way to both meet the technical requirements for validity and to ensure the testator’s wishes take effect.

For further information, please contact Alice Clewes, Partner in our Private Client Team, on 0191 232 8345 or email: Alice.Clewes@hay-kilner.co.uk