Wills Law Reform: What You Should Know

The Law Commission has recently published its recommendations on reforming the law governing Wills.  The law in this area has remained largely untouched since the introduction of the Wills Act 1837, some 188 years ago. The world has changed a lot over time, and many people now believe the law is outdated and needs modernising.

The aim of the reform is to help people have more control over what happens to their estate after they die, make writing a Will safer, and make the law clearer and easier to understand.

Here are some of the key proposals for reform:

Reducing the minimum age to make a Will

Currently you must be 18 years of age or over to make a Will. It is proposed that the minimum age be reduced to 16 years. This would coincide with the age that a child can legally commence full-time employment.

At present, if a child dies under the age of 18 years old, the Rules of Intestacy determine who inherits the child’s Estate. This may not reflect the wishes of the child.

The Law of Intestacy would first look at if a person is married, and if not, do they have children? If the answer is no, then the parents would be next in line to inherit. There may be a situation where a child is estranged from their parents, but under current law, those parents could inherit the child’s entire estate, as there’s no legal way for the child to direct it elsewhere.

Formalities of a Will

The Wills Act 1837 lays out the following criteria that must be met for a Will to be valid:

“(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

 (b) it appears that the testator intended by his signature to give effect to the will; and

 (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

 (d)each witness either -

(I) attests and signs the will; or

(ii) acknowledges his signature,

in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

The proposal is for the Court to have the power, in exceptional circumstances, to deem a Will valid, even if some of the criteria of the Wills Act 1837 has not been met.  This proposal would then support testamentary freedom by allowing people to have more control over how their estate is distributed. It would also create a way for the court to ensure a person’s wishes and intentions are carried out when it is very clear what they wanted to happen to their estate. This applies even if the Will might be invalid because of a missing formality.

Marriage

Currently, unless you make a Will in contemplation of marriage, it will be automatically revoked when you marry. The proposal is to abolish this rule, so even if you enter into marriage after making your Will, the Will remains valid.  It is thought that this will give extra protection to those who are vulnerable or who maybe entering into predatory marriages.

On a practical note, many people may be unaware that getting married can revoke an existing Will. They may have made their Will gifting their estate. For example, someone might make a Will leaving everything to their children from a previous relationship, then later get married, unaware that this would revoke that Will. As a result, the rules of intestacy would apply instead. This means that the new spouse would receive the first £322,000 of the estate, plus half of anything above that value.  The children would only receive the remaining 50%, if the estate is worth more than £322,000. If the estate is worth less than that, the spouse would inherit everything, and the children would receive nothing.

Undue Influence

It is very hard to prove that someone was unduly influenced into making a Will or coerced into including certain provisions in their Will. This is because the standard of proof that needs to be met by the person bringing the claim is very high, and usually coercive or controlling behaviour happens behind closed doors. The proposal is to allow the Court to reach a decision as to whether there has been undue influence or coercion where there is evidence to show that there are reasonable grounds to believe that it has taken place.

This increases the power of the court to protect the vulnerable, and ensure financial abuse does not go unaddressed.

Electronic Wills

The proposal is to allow individuals to make Wills electronically. There will be a strict set of conditions introduced to ensure this works effectively. Some recommendations include creating a reliable system that links an electronic signature to the person making the Will, and ensuring there is a clear way to tell the original Will from any copies.

The COVID-19 pandemic highlighted how technology can benefit this area of law and making the whole process of creating Wills more flexible and accessible in today’s busy world.  Electronic Wills support the overreaching aim of testamentary freedom by helping ensure a person’s wishes are carried out as intended. However, they must also offer the same level of protection against fraud and undue influence as traditional paper Wills.

The next steps now will be for the Government to review and respond to the Law Commission’s report, and the accompanying draft Bill. If the Bill is implemented into law, it will bring the recommendations into effect in a modern and clear way.

Here at JNP Legal our specialist lawyers in the Lifetime Planning department are keeping the recommendations under review and will be ready to adapt to any changes that are introduced to ensure that our clients continue to receive an excellent service and tailored advice.