2-3 mins read

Law Commission Report

In July 2017, the Law Commission launched its public consultation on reforming the law of wills. The consultation period closed in November 2017 and they have been analysing the responses they received and developing their final policy. They have yet to prepare a final report and to instruct Parliamentary Counsel to draft a bill that would give effect to our recommendations, as this project was put on hold in view of more pressing priorities. But it is just a matter of time.

Current law

The law in England and Wales that governs wills is mainly derived from the Wills Act 1837 (yes, over 180 years old)! The law that specifies when a person has the capacity to make a will was set out in a case in 1870, 150 years ago!

The law of wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era.

The significant changes relevant to a review of wills law include:

• the ageing population and the greater incidence of dementia;
• the evolution of the medical understanding of disorders, diseases and conditions that could affect a person’s capacity to make a will;
• the emergence of and increasing reliance upon digital technology;
• changing patterns of family life, for example, more cohabiting couples and more people having second families; and
• that more people now have sufficient property to make it important to control to whom it passes after their death.

The Consultation

The Law Commission consulted on proposals, amongst others, to:

• enable the court to dispense with the formalities for a will where it’s clear what the deceased wanted.
• change the test for capacity to make a will to take into account the modern understanding of conditions like dementia.
• provide statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will.
• make new rules protecting those making a will from being unduly influenced by another person.
• lower the age that a will can be made from 18 to 16 years.

The Commission also wants to pave the way for the introduction of electronic wills, to better reflect the modern world.

When the changes are finally embodied in legislation, we will let you know. As you might imagine, the government have other priorities just now.