The Law Commission has stated that the law around wills should be brought into the “modern world”.
Describing the current rules as “unclear” and potentially discouraging people from making a will, the commission has recently launched a consultation on proposals to update the existing legislation on wills.
It is considering whether, in exceptional circumstances, texts, emails and other electronic communications should be recognised as a valid will.
As the law stands, a will must be written voluntarily by someone of sound mind aged 18 or over. The will must be signed in front of two witnesses aged 18 or over, who are also required to sign the will.
However, the proposals put forward by the commission dilute this level of formality, accounting for instances where intentions are clarified in electronic form.
The commission provides the example of a car crash victim having expressed their final wishes via a text or email. These intentions could then be recognised as a formal will if the family chose to take them to court and have them approved.
It highlighted that the approval of a judge was essential if the messages were to be recognised as a will.
However, the commission did note that these proposals may result in family arguments, as well as acknowledging that its suggestions could lead to a “variety of avenues by which probate could become both expensive and contentious”.
Whilst these are important issues to consider, it also drew attention to the 40% of people who die without making a will, stating that the law needed to be overhauled in order to reduce this proportion.
Commenting on the plans was Professor Nick Hopkins. The Law Commissioner highlighted the difficulties with the current law, drawing attention to the main aims of the proposals.
“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it.
“And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.
“That’s not right and we want an overhaul to bring the law into the modern world.
“Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”
Sharing his thoughts on the proposals was Dan Garrett. The co-founder and chief executive officer at Farewill stated: “This bold statement from the Law Commission represents the beginning of a fundamental shift towards the democratization of legal services. Everybody needs a will and the fact that 40% of people die intestate is an appalling failure of the legal community to respond to consumer need.”
Head of Wills for the Co-op, James Antoniou also expressed his opinion on what the plans could mean for the industry.
“The spirit of the proposals from the Law Commission are welcomed. Making the law more accessible is one of today’s biggest challenges facing the legal industry. However, at the moment, the laws about what makes a will legally valid are strict and clear. So any relaxation of these rules, by giving the courts power to recognise other types of communication, creates uncertainty which could lead to a greater number of legal disputes and ultimately with families suffering the associated legal costs.
It’s important to recognise that these proposals are not trying to wholly replace the way wills are being written today, they are currently looking to extend the court’s powers to be able to recognise a person’s wishes where it is clear that they were intending to make a will but it doesn’t technically comply with the current strict rules.”
The Institute of Professional Willwriters has advised Today’s Wills and Probate that they are formulating a response to the Announcement from the Law Commission today which will be reported by us next week.
The consultation on the proposals can be accessed here. Responses will be accepted until the 10 November.
