The law on Wills: what changes have been proposed?
A Consultation Paper published in October 2023 by the Law Commission focused on two topics: possible reforms to enable electronic wills and whether entering a marriage or civil partnership revokes a Will.
The Law Commission published its final report on 16th May proposing reforms to the law of Wills. The Government is currently considering their recommendations. In this blog, Will Writer, Marika Piasecka, looks at the proposed changes to the Wills Act 1837 in more detail.
Electronic Wills
The Law Commission has been considering whether it’s viable to create an electronic Will on a computer or mobile device, and the logistics that surround this. For example, if the correct person has signed the Will, the Testator’s (the person making the Will) words have not been changed without their knowledge, and there is a clear record of what has been updated.
The Commission has expressed that they will need strong rules about checking the validity of an electronic Will. An introduction to electronic Wills comes from the Law Commission witnessing huge developments in technology and an increased adoption of digital tools in everyday life, with the Covid-19 pandemic playing a huge role. During the pandemic, so that Wills could still be made when emergency restrictions and social-distancing measures were in place, the Government amended the Wills Act 1837 to allow remote witnessing over videoconference.
The Law Commission recommended that electronic Wills should be made valid, but expressed that a reliable system will need to be used to ensure they are secure.
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Marriage and civil partnership Will revoke
If you get married or enter a civil partnership, a previously made Will won’t be deemed valid, and you will need to make another one. The Commission found that most people do not know about the automatic revocation rule, and in some cases, often when the person is older or lacks capacity, this is exploited.
If a person does not make a new Will post-marriage or civil partnership, intestacy rules apply. This means their spouse or civil partner will receive the majority of their estate, make funeral arrangements, decide if the body should be buried or cremated and where it should be interred. It also means that the deceased’s family and loved ones are disinherited or their inheritance is substantially reduced.
In light of increasing concerns about predatory marriage over the last few years, the Law Commission gathered evidence of its prevalence, finding out more about people who marry for financial abuse, as their understanding of the risk was limited. The Law Commission recommended abolishing the rule that the Will is revoked on marriage or entering into a civil partnership.
What are the requirements for a valid Will?
Under the current rules, a Will is invalid if it does not follow the legal formalities. The Law Commission recommended that, in exceptional cases where the Testator’s intentions are clear, but they did not comply with the requirements for a valid Will, the court should have the power to deem the Will valid.
Other recommendations
Lowering the minimum age to make a Will
The Law Commission has recommended that the minimum age at which a person can make a Will should be reduced from 18 to 16. It expressed concerns regarding cases where terminally ill children who do not have a close relationship with their parents may wish to pass their estates to someone other than their parent/s or to decide what happens with their body when they die.
Undue influence: protecting the vulnerable
The Commission believes that current rules to challenge a Will based on undue influence are very difficult, and the law is not adequately protecting the vulnerable. It recommended that the court should have the power to judge that a Will was prepared as a result of coercion or undue influence.
Capability tests
The Law Commission also stated that the current test that determines whether a person is of sound mind and capable of making a Will should be changed. It recommended that the same test be used to determine if a person can make a Will, as is currently used to determine whether a person is capable of making a range of financial and welfare decisions. At the moment, these two tests are different.
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