Law Commission finally reports on Modernising Wills

The great day has finally arrived! Eight years after the first consultation, and two years after the second, we now have the Report of the Law Commission (Law Com No 419) on Modernising Wills Law, accompanied by a Draft Wills Bill, and explanatory documents.

It is no exaggeration to say that the reforms being proposed are significant.  And there is a good chance of them being taken forward by the government.

Alexander Learmonth KC has given is an overview of the most important changes being proposed: 

1. A whole new Wills Act! Yes, the Wills Act 1837 would be repealed, and its provisions re-enacted in a new Wills Act, with updated language and the modifications set out below.  Quite sad to think that one of the oldest Statutes still in regular use might not  make it to its 200th birthday.
2. Wills for children! The proposals would allow 16 and 17 year-olds to make Wills in the same way as adults.  And more than that, they would also give the Court power to authorise children 15 years old or younger to make a Will, provided the child was ‘competent’ to do so.  I guess this could be for children unfortunate enough to have a terminal illness and a parent whom they dislike.
3. Electronic Wills! The Law Commission is proposing to allow testators to make Wills purely digitally.  All the same formalities would apply, except that it would not have to be on paper or with a ‘wet ink’ signature. There would also have to be a ‘reliable system’ for ensuring that the Will is protected from destruction or alteration, and that the signature is ‘linked’ to the testator.  There is provision for a statutory instrument to supplement these provisions, but that is not necessary for it to come into force.
4. Power to dispense with formalities! Where a Will (or electronic Will) does not comply with the necessary formalities, the Court will have power to deem them to be met, provided it is satisfied that the formally deficient Will demonstrates the testator’s intentions, both at the time the Will is made and from then until their death.
5. Mental Capacity Act 2005 test to govern testamentary capacity! Banks v Goodfellow, 155 years old, would be no more.  The statutory test would apply to determine who has capacity to make a Will.  Since Baker v Hewston, the debate rages on as to whether this actually makes any difference.  One concern as to how the statutory test would apply in practice is in relation to where a testator would be able to make a decision if assisted, but that assistance is not in fact given.
6. No revocation by marriage! Partly as a result of the publicity about ‘predatory marriages’, where elderly people who may lack capacity to make a will have their existing wills permanently undone by a marriage, and partly in response to the increase in couples who do not marry, marriage and civil partnership would no longer revoke a Will – only another will, revoking instrument or destruction.
7. Gifts to attesting witnesses etc.! Presently a legacy to an attesting witness, or their spouse or civil partner is void.  This would be extended to a legacy to a cohabitee of an attesting witness, and also to someone who signs a will on behalf of a testator at their direction, or to that person’s spouse, civil partner or cohabitee.
8. Power to allow a gift to an attesting witness etc.! But the Court would have another dispensing power, to allow a legacy to a signatory, or their spouse etc. to stand, provided it considers it ‘just and reasonable’ to do so.
9. A presumption of undue influence! While the ultimate test for undue influence in respect of Wills is to remain the same – “overpowering the volition (without convincing the judgment)” – the court would be permitted to find that this has happened unless the contrary is proved.  In other words, the burden of proof can be reversed: a presumption.  That presumption could arise where there is “evidence which provides reasonable  grounds to suspect” undue influence, which would include the conduct of the person alleged to have exerted undue influence, the relationship of influence between that person and the testator, and the circumstances in which the Will is made.
10. Knowledge and approval on a statutory footing! The new Wills Act would codify the requirement for knowledge and approval of a Will: the testator must understand that they are making a Will and the content and broad effect of the Will.
11. Extended power of rectification of Wills! The Act would extend the power of the Court to rectify a Will, to include cases where the error resulted from failure to understand the meaning or direct effect of the language used in the Will – in other words, deliberate but mistaken choices of language (as in Re Pittaway).
12. Ademption undone! A devise of property would not be addeemed by a contract for sale of the property in force at the date of death, but would transmit to the benefit of the contract.  And a disposition of an asset the subject of a gift under a will by an attorney under a Lasting Power would not necessarily cause ademption – the same approach as currently applies to Deputies under the Mental Capacity Act 2005.
13. Mutual wills, DMCs and secret trusts live on! No change to the law on these items, save that the Inheritance (Provision for Family and Dependants) Act 1975 would be amended to prevent mutual will agreements from interfering with the Court’s power to make reasonable financial provision from the estate.
14. Non-charitable bodies! A similar rule would apply to legacies to companies etc. which are not charitable as currently applies to charities.  So if the company no longer exists, the legacy would pass instead to the body now carrying on its business and which received its assets, if any.
15. Lots more! Those are the most dramatic changes, but there is a lot of detail in the Bill and in the Report.

A series of brief videos explaining the key changes proposed in simple terms will be released shorty, so stay tuned.