Modernising wills – Law Commission proposes reforms to wills and testamentary freedom

The Law Commission of England and Wales has published its long-awaited recommendations on modernising wills law and bringing testamentary freedom into the 21^st century.

These recommendations, if implemented, would bring significant changes to an area largely untouched since the Wills Act 1837, and, if passed, would represent the biggest reform of wills law in over 150 years. Here, our inheritance and trusts disputes, and wills, trusts and probate teams discuss the proposals for modernising wills.

Why does the Law Commission propose modernising wills law?

The proposed changes aim to make will-making more reflective of modern life and provide the ability to protect any vulnerable testator and ensure their true intentions are carried out.

Statistics show a continued rise in contested estates, cases of financial abuse, and predatory marriages, and unfortunately, the majority of individuals (thought to be as many as 49% of people) still do not have a valid will or power of attorney in place.

What are the key reforms proposed for modernising wills?

One of the most significant proposals is to change the rule that automatically revokes a will when someone gets married or enters a civil partnership. Under the existing law, this revocation can lead to unintended consequences, for example children being disinherited or other intended beneficiaries inheriting under the intestacy rules – if the person doesn’t make a new will.

Current intestacy rules set out in the Administration of Estates Act 1925 are increasingly outdated, failing to reflect modern relationships and family structures.

The Law Commission highlights that the current rule can motivate “predatory marriages”, where vulnerable individuals may be manipulated into marriage by those seeking financial gain. To address this, the Commission proposes that marriage should no longer automatically revoke an existing will. Instead, a will would only be revoked if the person making it clearly states their will should be revoked by marriage.

Another key proposal is to allow people aged 16 and 17 to prepare wills.  This will allow “minors” to validly record their wishes so, in the event of their death, the intestacy rules are not automatically followed passing inheritance directly to their parents.

How do the Law Commission proposals address informal and electronic wills?    

The Commission also recommends greater flexibility in recognising informal wills. Currently, a will that does not comply with the formality requirements in the Wills Act 1837 is not valid even if it is very clear what a person wanted to happen with their assets after they died. Strict rules on signing and witnessing often lead to valid intentions being dismissed.

The Commission recommends giving courts the power to uphold wills that clearly reflect the testator’s wishes, even if formalities were imperfectly followed. A clearly expressed wish, whether written informally or communicated electronically, could be considered legally valid by the courts, who will consider the individual evidence.

The recommendations could go even further in line with the Government’s launch of its digital app this summer.  This may mean that wills would be able to be prepared electronically (not on a mobile phone) and stored as part of a “digital wallet” alongside driving licences and passports.  However, the recent high-profile hacking scandals of several large institutions may cast doubt over the security of storing such important data and documents in this way.

How will testamentary capacity be considered by modernising wills law?

A further key reform is the proposed adoption of the Mental Capacity Act 2005 to assess testamentary capacity, as is the case in the Court of Protection, replacing the often-used Banks v Goodfellow test which dates back to 1870. The MCA presumes mental capacity, and this could align the law for wills with modern medical understanding and provide much needed clarity on the anomalies in this area.

The recommendations made in relation to undue influence are considered to be some of the most welcome changes in the reforms. These acknowledge the challenge of proving undue influence where the evidence is nearly always circumstantial, since by its nature, often happens behind closed doors. The Commission recognise that the law is not adequately protecting vulnerable people from financial abuse. For that reason, it is recommended that it should be possible for the courts to infer that a will was brought about by undue influence where there is evidence which provides the court with reasonable grounds to suspect it, placing the burden of proof on the person seeking to prove the will.  There may also be a supported will making scheme to assist vulnerable individuals in making their will and to reduce accusations of undue influence following their death.

This is a significant change from the current position, where in many cases, the argument is not pursued because the evidential burden of proof is simply too high. Attached to this recommendation is a further recommendation for the testator to demonstrate they understood the content and effect of the will, introducing a ‘knowledge and approval’ into statute.

What does this mean for someone considering making or updating their will?

The proposals for modernising wills could reshape how individuals prepare and update their wills in future. It is now for the Government to consider the recommendations for reform, and the accompanying draft Bill for a new Wills Act.

Until the reforms are adopted, and a new Wills Act prepared, testators should continue to carefully think about how they prepare and execute their wills in line with the current Wills Act – to avoid their wishes not being followed upon their death and to protect their intended beneficiaries.

Our Legal 500-rated wills, trusts & probate team and inheritance & trusts disputes team offer friendly but practical advice and are available to advise on current best practices, as well as how to future-proof your estate planning in light of these potential changes. Please do get in touch.