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Law Commission plans reform of will-making regime

Thursday, 24 July, 2014

The Law Commission (England and Wales) is planning fundamental changes to the law on wills and testamentary capacity to take account of changes in social norms, technology and medicine.

The reforms will aim to reduce the number of wills being challenged and to make it easier to rectify will-drafting mistakes after death. They will also address the formalities required for a valid will, and the matter of mutual wills.

Existing law governing the validity and interpretation of wills is set out in the Wills Act 1837 as amended by the Administration of Justice Act 1985 and some other statutes. The requirement for testamentary capacity is not statutory but derives from Victorian case law – the 1870 judgment in Banks v Goodfellow (5 QB 549). Though both regimes have been substantially clarified by later case law, they still bear the marks of a long-past era.

The vast increase in the incidence of senile dementia has brought the issue of testamentary capacity into prominence, leading to many more challenges that can be expensive to resolve. Also, the rise of cohabitation, and the prevalence of second and subsequent marriages, has extended the number of family members who might dispute a will on undue influence or similar grounds.

'There is concern that the current law discourages some people from making wills, that it is out of step with social and medical developments, and that it may not work in such a way as to give best effect to a person’s intentions on death', says the Commission. 'Better, up-to-date law should encourage more people to make arrangements for when they die, and avoid the need for expensive litigation, which can divide families and cause great distress'.

The project will examine whether the strict formalities that dictate how a will should be written and signed are out of date, and whether reform is needed to keep up with modern technical developments. The large majority of documents are now created electronically and many never exist in paper form at all, so it may be time to consider the matter of digital authentication of wills as is already being considered elsewhere – for example in powers of attorney and conveyancing.

Work on the project will start early next year. The Commission's conclusions, along with final recommendations and a draft Bill, are expected to appear early in 2018.

Sources