26/07/2017
The Victorian laws that currently govern will-making are unclear, outdated, fail to protect the vulnerable and could even put people off making a will altogether, claims the Law Commission in a consultation seeking views on proposals to modernise the process and pave the way for the introduction of electronic wills.
Issues identified as causing problems include
- if certain procedures aren’t followed, people’s dying wishes aren’t acted on even when their intentions are clear
- a will is only valid if the person writing it understands what they are doing but the law uses a Victorian test which doesn’t reflect the understanding of conditions like dementia and differs from the modern test for capacity in the Mental Capacity Act 2005
- many people might be unaware of some of the laws of wills, for example that marriage revokes previous wills
The proposals set out by the Law Commission in ‘Making a Will’ include
- giving the court power to recognise a will in cases where the formality rules haven’t been followed but the will-maker has made clear their intentions
- an overhaul of the rules protecting those making a will from being unduly influenced by another person
- applying the test of capacity in the Mental Capacity Act 2005 to the question of whether a person has the capacity to make a will
- providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will
- giving the Lord Chancellor power to make provision for electronic wills
- lowering the age at which people are able to make a will from 18 to 16 years old
The consultation also specifically seeks views on
- what respondents see as the main barriers to people making a will and to relate their own experiences of disputes over wills following the death of a loved one
- whether the rule that marriage revokes a will should be retained or abolished