An Interview with Professor Nick Hopkins from the Law Commission

With over two decades of experience in researching and teaching property law, Professor Nick Hopkins was well placed to be appointed as Law Commissioner for property, family and trust law in 2015. As well as having served the Property and Trusts Section of the Legal Scholars as Convenor, Professor Hopkins also has a wide publishing portfolio including case notes editor at The Conveyancer & Property Lawyer, as well as co-authoring leading land law textbook, Land Law: Text, Cases and Materials.

In this interview, he talks to Today’s Wills and Probate about the recently closed will law consultation, explaining how responses will be used to form an updated system which will work for both professionals and consumers.

How long have you been working at the Law Commission and what does your role involve?

I have been in this role just over two years now, having begun in October 2015. As commissioner, I have policy responsibility for all of the projects across the property, family and trusts law team. This means I work as Lead Commissioner on all of our projects, and as all of our recommendations are those of the Commission, I also work with the team of other Commissioners making policy decisions across the projects throughout the organisation. As we’re a consultative body, my work on our team projects involves engaging with many other stakeholders across the sector, gathering views from a variety of different sources.

You recently closed your consultation on wills law – what are you hoping to achieve from this?

The law relating to wills is old, stemming from the first year of Queen Victoria’s reign. We need law that is now fit for modern purposes and reflects the technological advances seen over recent years.

Our main aim is to update the current law in order to make it fit for modern purposes, with a wider objective of encouraging more people to make a will and ensure that their final wishes are respected.

We’re also looking at improving protection for vulnerable people, namely from the risk of fraud as well as undue pressure when it comes to consolidating final wishes.

What has been the reaction to the consultation – are you able to give any insight into responses?

We have had a fantastic response from the outset, with significant engagement from both the profession and the national media.  Cumulatively, we have had 180 written responses consisting of around 600-700 pages of comments.

What’s been brilliant is the wide-ranging nature of responses received, with professionals from across the sector sharing their views, as well a variety of members of the public.

What are the next steps you will be taking now the consultation is closed?

We will be analysing all the responses in order to assist us in developing the policy we will put forward to the commissioners.

Currently, we are working through all the responses in detail, going back to stakeholders to highlight and discuss the points of concern that they’ve raised. We are committed to having an open dialogue in respect of the responses, right up until the final report.

How do you think making will writing less formal will be of benefit to testators, beneficiaries and the profession?

I think it’s important to be clear that formalities in wills are highly important; given their significance, they’re not something that people should treat lightly. Within our provisional consultation, we’ve concluded that the basic formality requirements should be kept, as should the outcome of these requirements. Therefore, if they are not adhered to, the will shall no longer be valid.

However, we do provisionally propose the introduction of the dispensing power to judges, enabling them to find a will valid if they believe that it clearly expressed the testator’s intention, and on the individual facts of the case, the judge can decide whether these intentions should be given effect. Whilst this is already the case in other jurisdictions, the law in this jurisdiction does not currently stretch this far.

Is the Law Commission planning on doing any further work within the wills and probate profession?

Within the consultation, we do have a ‘Call for Evidence’ surrounding the matter of digital assets. This was something that was brought to our attention as we were preparing the consultation, and concerns people had over managing their digital assets on death became apparent.

Whilst we concluded that many of these digital assets are often contractual or access rights as opposed to actual assets, we do think there are aspects which do need to be looked at. As we don’t think we have enough evidence to understand what these issues really are, we’re keen to receive further feedback from the profession on what they feel needs to be done in regard to digital assets.

There has been a lot of debate surrounding transparency of quality and pricing within the legal sector – what are your thoughts on this?

As you will be aware, the Government decided against making will writing a reserved legal activity in 2013 and to our knowledge, this hasn’t changed. Wills are important documents, and the law surrounding them should reflect this importance.

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