The number of people who have made a Will is surprisingly low at about 40% of the adult population. Recent Law Society research found that a common reason for not making was that the individual concerned felt they had nothing to leave. Wills also have a rather fusty, old fashioned image and they attract a number of myths, such as the “reading of the Will” which has long since been abandoned.
This view, however, might be about to change as the Law Commission has announced a review of the laws relating to Wills.
The legal basis for Wills
The law governing Wills is in fact very old, emanating from a statute enacted in the first half of the nineteenth century: the Wills Act 1837. Many of the court cases in this area, including the leading case on assessing capacity to make a Will, also date back to Victorian times.
It could be argued that a Victorian legal device may not be fit for purpose in the 21st century. Many more people are now living into very old age, and with a consequent rise in dementia, having fit-for-purpose rules against which to assess someone’s capacity to make a Will is becoming more important.
There is some confusion as to whether the Mental Capacity Act 2005 now sets the standard in this area, or whether the common law still applies. Practitioners are instructed by the courts that when making a Will for an elderly person a medical opinion as to capacity should be sought first, but this recommendation can be difficult to implement in practice, either because of the testator’s reluctance or because it can result in an often significant time delay.
Change in sight?
This year, the Law Commission will begin a review of the laws relating to Wills, including the formalities for making them and the law governing capacity. The Law Commission’s stated aim is to bring the law up-to-date to facilitate Will making and reduce the likelihood of Wills being challenged after death.
We don’t yet know what the Commission will recommend; for example will they recommend a relaxation of the requirement for witnesses or will consideration be given to making the process digital? The review will not be a quick process and a draft Bill is not expected until 2018, with the timescale for implementation then being dependent on the Government of the day accepting the recommendations and taking the Bill forward through the parliamentary process.
Disputes over Wills are common and many are based on a challenge to the testator’s capacity, allegations that undue influence was applied to the testator, or that he did not know and approve of the Will’s contents. Such disputes are stressful for the parties and very expensive, so hopefully the Law Commission’s recommendations will achieve their stated aim of reducing the likelihood of Wills being challenged after death.
Despite the age of the laws relating to Wills, the procedure for creating them can be straightforward and those who have not made a Will should not wait until any changes have been implemented. Putting a Will in place now will ensure that matters are set out in a legally binding way so that family and friends are provided for in accordance with the testator’s wishes.
For further information about estate planning or making a Will, please contact a member of our private client team.