Law Commission proposes judicial power to recognise informal wills

Thursday, 13 July 2017
The Law Commission has begun a consultation on a drastic revision of what it calls the 'largely Victorian' law of wills in England and Wales.

The main proposal is a new attitude to existing formality rules. The Commission wants courts to be able to dispense with the formalities for a will, and recognise wills where the deceased's testamentary intentions are clear.

Also proposed are:

  • A separate doctrine of testamentary undue influence, and the related issue of knowledge and approval.
  • 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 incidence and understanding of senile dementia. The existing Banks v Goodfellow test does not cope well with patients whose mental capacity varies from day to day, or is declining only gradually.
  • Lowering the age which a person can make a valid will, from 18 to 16.
  • Provisions to recognise electronic wills, subject to sufficient protection for testators against fraud and undue influence.

Other proposals will cover technical issues such as ademption (linking between legacies and lifetime gifts); revocation; interpretation and rectification; mutual wills; and donationes mortis causa (gifts in anticipation of death). The Commission is also interested in ideas for a formal system to support people with diminished capacity in making a will, rather than the statutory will process used now.

'The law is unclear, outdated and could even be putting people off [making wills]', commented law commissioner Nick Hopkins. He said it was 'not right' that the courts cannot act on a person's instructions if they have not followed the strict rules of will-making, even when what they wanted was obvious.

'Conditions which affect decision-making, like dementia, are not properly accounted for in the law', he added. 'We want an overhaul to bring the law into the modern world.'

George Hodgson, STEP Chief Executive, said: 'We welcome the Law Commission’s consultation, and look forward to submitting our response.'

  • The consultation period will run until 10 November 2017. The proposals have been ready for publication since May this year, but launch was postponed due to the general election.




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