Law Commission: Making a Will Consultation
The Law Commission recently published a consultation paper on the law surrounding Wills. The consultation includes various comments, recommendations and areas for discussion. A brief summary of the main provisions of the consultation paper can be found below.
A number of foreign jurisdictions have what is known as ‘Dispensing Powers’ which allow a court to recognise a Will as valid even if it did not comply with all formalities requirements.
The Law Commission proposes similar powers be introduced in England and Wales to act as a safety net for those who have tried to make a Will, but failed to follow the correct formalities. These would be dealt with on a case by case basis and would not introduce a method of making a Will, maintaining that, for example, an unwitnessed Will would not be simply admitted to probate, and it would remain in a Testator’s best interest to comply with formalities rather than risk the courts deciding whether to uphold their intentions.
The question of what evidence could be admitted to courts to prove a Testator’s intentions is up for debate, the Law Commission does put forward that electronic documents (texts and emails), video and voice recordings and oral statements could be used as evidence, whilst noting risks of contentious cases.
A formal support scheme has been proposed for assisting those with diminished capacity to write a Will. This would ensure that fewer people with diminished capacity would need to apply to the Court of Protection in order for a Statutory Will to be prepared.
Views on the nature of this scheme are invited by the Law Commission, but is stated that this scheme would likely not be publicly funded, although paying for this scheme would still be cheaper than a Statutory Will.
Whilst the Law Commission are optimistic about the prospect of allowing electronic Wills due to their cost saving, convenience and security prospects. They are currently proposing that electronic signatures should not currently be capable of fulfilling the S9 Wills Act 1837 requirements. Provision could instead be made to give power to the Lord Chancellor, allowing them to enact laws allowing for electronic Wills to be made valid in the future by statutory instrument.
They do see a number of challenges that electronic Wills could face.
The method of signing an electronic Will is the key issue identified, in which they consider there to be two challenges: security and infrastructure. Simple electronic signatures, such as typing a name, would be too susceptible to fraud. More complex biometrics and encryptions based signatures would offer greater security, but would require specific equipment and given the aim of cost saving may not be worthwhile for Testators.
Children Making Wills.
Despite identifying no pressing need for considering whether children could write a Will, the law Commission sees few infrequent but important cases as justification for it to be discussed.
Two areas are identified. Firstly, that it is possible for children to own significant assets, for example due to a personal injury settlement, and secondly that Wills are more than just distributing assets and children may wish to be able to appoint executors, who will ultimately have the final say on arrangements regarding the body after death. The main consideration here being children who are estranged from a parent.
Two proposals are offered. The first being to reduce the age of Testamentary Capacity to 16. The second being for rules to allow for under age children to write a Will where they have sufficient understanding.
There are proposals for the review of the ademption rules in limited circumstances. In particular:
- Where the testator has entered into a contract to sell property but dies before the completion of the contract;
- Where the testator has made a gift of shares but the company in question has changed the nature of the shareholding;
- Where the testator dies at the same time as the property is destroyed; and
- Proposing the removal of the anomaly between the effect of a sale by a deputy, compared with a sale by an attorney.
The Law Commission believe that the current system of setting a gift aside due to undue influence, that being the person claiming undue influence must prove it, is too narrow in comparison to proving undue influence with a lifetime gift, where there is a presumption in certain circumstances. Two approaches are proposed for a doctrine of Testamentary undue influence: a structured approach or a discretionary approach.
The structured approach would be based on the lifetime gifts rules. Under this, a presumption of undue influence would be raised if:
- the existence of a relationship of influence, which would be presumed in respect of some relationships; and
- the disposition calls for explanation
Relationship of influence would be presumed in respect of gifts to:
- a trustee;
- a medical adviser;
- a person who prepared the will for remuneration; and
- a professional carer
The Law Commission asks whether a spiritual advisor should also be included in this category.
When considering if the disposition calls for explanation, the court would consider two factors:
- the conduct of the beneficiary in relation to the making of the will; and
- the circumstances in which the will was made
Under the alternative discretionary approach, the court could presume undue influence if it were satisfied that it is just to do so in all the circumstances of the case. This approach would still consider relationships of influence and calls for explanation, but puts less pressure on the preciseness of these and allows for more flexibility.
Under either approach, if the presumption is raised it would be up to the defender of the gift to rebut the presumption.
Knowledge and Approval
The current law of a Testator knowing and approving of the contents of their Will overlaps with the notion of acting free from undue influence, and therefore has some conceptual difficulties.
It is proposed that if the scope of undue influence is broadened, then, in turn, the scope of knowledge and approval should be narrowed to ensure that knowledge and approval, and whether the Will was freely executed, are independent of each other.
It is proposed that the test of knowledge and approval should only be to prove that the testator both knew that they were making a Will (and the terms of that Will) and that they intended to incorporate and give effect to those terms.
Signing on a Testator’s behalf
It is proposed that the current lack of restrictions on who can sign a Will on a Testator’s behalf could put Testators at risk of fraud and that limits should be put in place, particularly in regard to persons benefiting under the Will.
Witnesses to the Will.
It is proposed that the rule making a gift to the spouse or civil partner of a witness void should be extended to include a witness’ cohabitant. The Law Commission asks for views on whether to extend this further to include the parent, sibling or other family member of a witness.
It is proposed that testamentary capacity should be governed by the capacity test in the Mental Capacity Act 2005 rather than Banks v Goodfellow due the latter pre-dating modern understanding of mental health and its unclear operation. The MCA test, however, applies in multiple contexts and is familiar to lawyers, medical practitioners and others whose opinion will be sought when assessing capacity.
The presumption of capacity, unless otherwise proven, is particularly important in the Law Commission’s view, as it draws attention to the fact that capacity must be assessed on a case by case basis. No disability or impairment would be, by itself, proof of a lack of capacity.
A code of practice of testamentary capacity could also be introduced to provide guidance on when by whom and how testamentary capacity should be assessed.
It is recognised that many practitioners would favour the retention of the Banks v Goodfellow test and the Law Commission ask for an opinion on alternatively placing the test in statutory form along with clarifying its uncertainties and updating its language.
The Law Commission has concerns on public knowledge of the rule that marriage revokes a Will and state that there are arguments for and against the rule. They ask for evidence of public awareness and for an opinion on where the rule should be abolished.
It is proposed that the scope of persons able to write a Privileged Will is amended to apply to only those serving in the British Armed Forces and to those civilians who are working closely with the Armed Forces who are subject to Service Discipline.
Interpretation of Wills.
It is proposed that the interpretative provisions of the 1837 Act should be repealed and replaced with provisions drafted in clear modern language.
Whilst not proposing the abolishment of Mutual Wills, it is proposed that the rule that Mutual Wills shield property from a 1975 Act claim is abolished.
Donationes Mortis Causa
Opinion is sought on whether the doctrine of donationes mortis causa should be abolished.