The Law Commissions Review Of The Law Of Wills
Each year many thousands of people die having made a Will which determines who is to receive the proceeds of their estate. However, many people die ‘intestate’, the term for dying without preparing a Will. It has been suggested that around 40% of the adult population in England and Wales do not have a Will and therefore the distribution of their estate is determined by the rules set out in the Administration of Estates Act 1925.
The Law Commission has launched a project concerning the Law relating to Wills.
The Law relating to Wills is governed by the Wills Act 1837 and the law that governs when a person has capacity is set out in a case from 1870. The Law Commission have acknowledged that ‘the law of Wills need to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era’.
The structure of the consultation paper begins by considering the testators capacity to make a Will. This refers to a person’s mental capacity as to whether the degree of understanding is sufficient for the act or decision in question. The ageing population and greater incidence of dementia is relevant in this area.
The next section deals with the position if the testator does not have sufficient capacity to make a Will. The Court of Protection, set up to provide protection for vulnerable people, has the ability to authorise that a Statutory Will is prepared for those that do not have sufficient capacity to give instructions themselves. The effect of this Will is as if the testator had made a valid Will under the Wills Act 1837.
The Law Commission then looks at the possibility of supported Will-making which is ‘designed to benefit testators who could have capacity to make a Will if provided with support to do so’. It is envisaged that this proposal would ‘fill the gap between Wills made by testators who clearly have testamentary capacity and statutory Wills made by the Court of Protection’. This section would apply to Testators who are capable of making a Will but because of an impairment require some support to be able to achieve this.
Next is the law relating to the formalities required in the preparation and completion of a valid Will. Whether there needs to be a reform of the present rules and whether these formalities deter people, who would otherwise wish to make a Will, from actually going ahead and preparing a Will.
Consideration is also being given to whether the law can provide for people to make electronic Wills given that digital technology is now very prevalent in everyday life. If Will making becomes more convenient will this encourage more people to have a Will? There are several issues that are being addressed including whether electronic signatures would validate a Will and also the questions regarding the storage of electronic Wills.
The consultation also includes the issue of protecting vulnerable Testators in respect of knowledge and approval and undue influence. It is important to ‘show that the Will has been executed properly executed by a testator with capacity to do so but that it also truly reflects the wishes of the testator and that those wishes were freely decided by the testator’.
A further potential reform is the age at which someone can make a Will. At present, in England & Wales, the age of testamentary capacity is 18. It is also at this age that people can vote, buy alcohol or tobacco. However, a 16 year old can leave school, marry, join the army, live alone, make their own medical decisions and consent to sexual activity. It is therefore an anomaly that at 17 years someone can be married and have parental responsibilities but they cannot make a Will. The Law Commission will look at lowering the current age to 16 or introducing the authority for the Courts to allow the preparation of a Will in certain circumstances.
The Law Commission will also look at the Interpretation and Rectification of Wills where the drafting of the Will is imprecise or contains mistakes. There will be consideration given as to whether interpretation and rectification is the correct order or whether any mistake in a Will is rectified first and then interpreted in accordance with that rectification. There will also be some consideration as to whether the Courts are compelled to consider rectification and interpretation in a particular order.
The consultation also looks at the rules of ademption, where a testator makes a gift in his or her Will of property which the testator no longer owns at the date of death. This is being considered in light of the disposal of assets by attorneys and deputies, incomplete transfers and options to purchase, gifts of shares and simultaneous destruction of property and death.
Also being considered is the revocation of a Will. This is the formal act of withdrawing a Will. The Law Commission propose that no reform is required to the law governing the revocation of Wills by Will or Codicil, writing or destruction. They are seeking, however, to consider the rule that marriage automatically revokes a previous Will and whether this should be abolished or retained and what the public awareness is in relation to the general rules that marriage revokes a Will. They will also consider whether the Will of a Testator, who lacks testamentary capacity, is revoked if the Testator enters into a marriage.
A further area of the present law that is being considered relates to mutual Wills. This arrangement allows two or more people to make Wills in such a way that prevents the survivor changing his or her Will after the death of the first person. Many people confuse mirror Wills with mutual Wills, where mirror Wills merely mirror the other persons Will and does not ordinarily bind the other party. The Law Commission are to consider whether mutual Wills are to be abolished and they are also to consider changing the definition of net estate under the I(PFD) Act 1975 to redress against inflexibility and potential injustice that may be caused by the mutual Wills arrangement.
The doctrine ‘donationes mortis causa’ lies outside of the law of Wills as strictly defined. This relates to a gift made by a donor in contemplation of their death and is conditional upon their death. The Law Commission are considering whether the doctrine is to be abolished as amongst other issues, it is open to the risk of abuse, fraud and dispute.
In light of the digital age that we live in an area that is being considered relates to the transfer of digital assets following someone’s death. The legal status of physical objects is straightforward as they can be passed to others by a Will. The issue arises with regard to the access of these assets and the potential breach of user agreements. In some cases Testators have given the beneficiaries their passwords to allow access but there is a problem with passwords being changed over time and the beneficiary not being updated.
The issue of the disposal of bodies is also being considered. Testators cannot dictate what happens to their body although they can include their wishes within their Will. The person in lawful possession of a body has the right to dispose properly of it. If the deceased left a Will then the Executor(s) of the estate will have the lawful possession. If the deceased died intestate the person entitled to the grant of letters of administration will have lawful possession. The problem arises where the system breaks down and there is a dispute as to the disposal of the body.
The Law Commission is to consider the details of the Burial Rights Reform Bill which lapsed when a general election was called for 8 June 2017.
The Law Commission consultation paper is available on their website at http://www.lawcom.gov.uk/project/wills/. And they are inviting responses from 13 July 2017 through to 10 November 2017 from the general public on questions around their experiences of making a Will and medical professional on their plans on mental capacity.
If you have queries relating to making a Will or the project highlighted in this summary then Talk to Tollers.