Law Reform: Recommendations to take Wills into the modern era

Recently, the Law Commission (LC) published its recommendations to reform the law governing Wills. This includes a draft Bill to replace the Wills Act 1837. Whilst the rhyming of ‘Will Bill’ is particularly exciting (for me anyway), this is not the most exciting thing to come out of the recommendations last week. Below, I summarise just some of the important proposed changes and how this may affect those who wish to prepare Wills in the future.

The Recommendations

Will reform has been a long time coming, and with the last Act of parliament being passed in 1837, it is safe to say that time has moved on since then! The focus of the recommendations is therefore on modernising Wills, with the LC recognising that the law, as it stands, is largely a product of the Victorian era.

Formalities of Creating a Will

An area that the recommendation focuses on is the formalities concerning the creation of a Will. Currently, a valid Will must meet the following criteria:

• it must be in writing;
• it must be signed by the person making it;
• the individual must have an intention by his or her signature to give effect to the Will; and
• the individual’s signature must be acknowledged in the presence of two or more witnesses.

The LC wishes to address circumstances where the above formalities are not met, but the intention of the individual making the Will is clear. They recommend that the court is given powers to dispense with these requirements where there is a document/record which reflects the ‘intentions’ of the individual making a Will. This is a relaxation of the current strict rule that invalidates the Will if all of the formalities above are not complied with.

Whilst it is still unclear as to what ‘intention’ boils down to, the recommendations permit evidence such as electronic recordings. Although the recommendations reassure that this will be judged on the balance of probabilities, it will be interesting to see how the LC addresses this against the background of rapidly evolving technology, including the meteoric rise of AI, and concerns about legislation keeping up with these changes.

Electronic Wills

On the topic of the ever-changing area of technology, the LC wish to permit the signature of a Will by electronic means. The current handwritten signature acts as confirmation of the intention of the person signing the Will and that the document represents their wishes. It also helps to identify the person signing the Will and ensure that the Will is genuine. A real concern is that electronic signatures potentially increase the risk of fraudulent signatures simply being copied onto a Will.

To prevent this, the recommendations suggest an ‘onboarding process’ which could mean that verification is taken by video before signing. However, this demand for software may equally increase the cost to individuals making a Will. In addition, implementing clear and uniform rules on electronic formality would also be difficult whereas current rules, although old-fashioned, are implemented for a reason, which is protection for everyone when making a Will.

Marriage and other recommendations

Another reform recommended is abolishing the current rule that allows marriage to revoke any existing Will. The recommendations wish to address scenarios where individuals get married in order to inherit the other’s estate.

One final notable recommendation is to change the current rule that provides that only individuals that are over the age of 18 years can make a Will. The recommendation is to lower the age to 16 years, recognising that a child may wish to have autonomy over who inherits their estate (for example, if they do not wish for their parent to inherit).

Conclusion

Whilst the above only covers the headline recommendations, Leathes Prior will be keeping an eye on the Bill and recommendations as they progress. Currently, the recommendations and draft Bill have been laid before parliament, with the Government commenting that they wish to review the recommendations whilst recognising that the elderly and vulnerable in society must be protected.

In the meantime, the current rules on Wills continue to stand the test of time. Making sure that the formalities of making a Will are met remain extremely important.

If you need any advice or assistance with putting your own Will in place, then please feel free to contact our Wills, Trusts and Probate Team on 01603 610911 or via email at info@leathesprior.co.uk.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.