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Fiona Debney

Making a Will

Fiona Debney

10
Aug

Power of Words

The Law Commission has published a consultation document in relation to the reform of the law around making a will.

The document runs to 269 pages and has 65 Consultation Questions throughout.

As practitioners will know there is no ‘law of wills’ and the production of the final document perhaps is the easiest part of all. The ‘thinking process’ behind the same of both the person making the will and anyone advising is where the hard work is.

The Law Commission report is wide ranging and has looked at a number of issues which it has identified as either causing problems now or which may do so in the future. They have summarised this as wishing reform to support testamentary freedom by encouraging and facilitating will making and supporting the testator’s intentions; protecting the testator from fraud and undue influence and increasing clarity in the law where possible or where there is a conflict (perceived or otherwise) between statute and the common law.

The topics covered are headed – Capacity

Statutory wills

Supported will-making

Formalities

Electronic Wills

Protecting vulnerable testators: knowledge and approval and undue influence

Children making wills

Interpretation and Rectification

Ademption

Revocation

Mutual Wills

Donationes Mortis Causa

Other things a will could do

 

Some of these topics are potentially more emotionally charged than others, and some quite frankly read as if one was sitting a law exam. However, altogether they have attempted to tackle head on that the law of wills “needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era”.

The relevant factors that they identified are not ‘up for discussion’ but are hardly in dispute being:

  • An ageing population
  • The greater incidence of dementia
  • The evolution of the medical understanding of disorders, diseases and conditions that could affect a persons’ capacity to make a will
  • The emergence of an increasing reliance upon digital technology
  • Changing patterns of family life’ for example more cohabiting couples and more people having second families; and
  • That more people now have sufficient property to make it important to control to whom it passes after their death.

This has necessitated them considering the impact of other areas of law traditionally thought to sit alongside that of wills, to include (but not exclusively) intestacy, mental capacity, duress, undue influence etc.

There also appears to have been an acceptance that many other areas of law would have to be looked at to provide a totally comprehensive reform package i.e consumer and contract law in light of social media and ‘digital assets’ but that this would be impossible to carry out. The focus has therefore been on areas they consider to be most in need of reform.

Each area listed above is of itself a huge topic both intellectually and practically and summarising the issues in one article is near impossible.

The more emotive subjects judging by the reaction in the press and on forums are children making wills, electronic wills and supported will making.

That is not to say that the considerations as to capacity are not also emotive but the most ‘chatter’ has been on the above.

Children making wills

The Commission quite rightly points out that there are a number of age limits that exist to protect children. They cite the age limit for purchasing tobacco, alcohol or voting as opposed to leaving school, marrying, joining the army, live alone and make medical decisions.

Their recommendation, therefore, is that the age of testamentary capacity is reduced to the age of 16. However, they have then gone on to ask the question whether the courts should have the power to authorise underage testators to make wills and if so, who should be allowed to determine an underage testator’s capacity at the time the will is executed.

We would all agree that there are some young people who are infinitely more mature than some 20-year-olds and the proposal once thought through does in my view make sense, and makes the law as a whole more cohesive.

Electronic Wills

The whole digital debate is something that is going to resound for a long time to come. Technology has undergone perhaps the biggest advancements it has made in the last 15 years and who knows what is around the corner?

Quite rightly the Commission has pointed out that the status of electronic wills is uncertain it is highly likely that they will become common place in the future. However big issues are that electronic signatures must be secure and as such must also be subject to specific legal rules. The infrastructure to support them has to be robust whilst also viable technically and commercially. The biggest concern is the possibility of fraud and undue influence and as a result, the Commission has suggested that there is a lot more work to do before these are fully introduced.

Supported Will Making

The Commission has considered the subject of supported will making which is inextricably linked to capacity. There are many suggestions within the paper and these have very considerable implications as they appear to be suggesting the creation of a role of supporters, with a debate as to who those shold be, what criteria they should meet and how they would be appointed. Again, a huge area for consideration.

In conclusion, the consultation paper needs to be read by everyone and replied to. The potential changes as a result of what may be recommended are far reaching and in some areas could be called revolutionary and as such, it is important that as many people as possible share their view.

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