STEP, professional bodies and charities prepare to respond to Law Commission consultation

The Law Commission began work almost ten years ago on the current phase of wills law reform, holding a consultation in 2014 to identify area where it felt the law was not working well. At the time, consultation responses focused particularly on the two main topics of testamentary capacity and the formalities of execution.

A further consultation took place in 2017, addressing these and other issues in more detail. It noted the changes in society, technology and medical understanding that have taken place since the origination of wills legislation. These included the greater incidence of dementia, better medical understanding of disorders, diseases and conditions that could affect capacity, the increasing reliance upon digital technology, the changing patterns of family life and the fact that more people own significant assets.

Proposals considered in the consultation included enabling court to dispense with the formalities for a will where the deceased's intentions were clear; change the test for capacity to take into account modern medicine; statutory guidance for medical professionals conducting an assessment of testamentary capacity; new rules to protect against undue influence and the introduction of electronic wills.

Since then the passage of time, as well as the COVID-19 pandemic, may have shifted the public's views on these topics, says the Law Commission. It has therefore announced a supplementary consultation paper on some discrete issues, to be published in September 2023.

The Law Commission is still forming views on its policy on wills, but according to the Institute of Legacy Management (ILM), working with law firm Farrer & Co, the new paper will focus on the revocation of wills by marriage and on electronic wills. According to the ILM and Farrer’s joint discussion paper, most charities believe they would benefit from abolition of the general rule that marriage revokes a will. Although abolition would probably result in more claims from spouses under the Inheritance (Provision for Family and Dependants) Act 1975, charities would rather defend such a claim than be cut out by the general revocation rule.

The impact of electronic wills is less clear, but most charities agree that the easier and cheaper it is to make a will, the more wills will be made, potentially increasing the number of charitable bequests.

STEP is collaborating with Farrer & Co to consider the scope of the Law Commission’s review at a joint forum on 17 October. We look forward to bringing our experts from throughout England and Wales together, in an open forum with the Law Commission, to consider best practice approach in the digitisation of wills, in addition to the revocation of wills by marriage.

As part of the ongoing consultative process, representatives from STEP’s UK Technical Committee and England and Wales Committee will be meeting with Law Commissioner Nick Hopkins in the coming months to consult on the Law Commission’s draft proposals.

Sources

• Institute of Legacy Management
• STEP (17 October forum)
• Joint discussion paper (PDF)
• Law Commission