Wills Act 1837 – Reform or Revolution?

Last week the Law Commission of England and Wales published their recommendations on reforming and modernising the law on Wills. They hope that these updates, if adopted, will take account of changes to society; protect vulnerable individuals better; and reflect technological progress.

The Wills Act 1837 is one of the oldest pieces of legislation that has not been adapted or amended so this is historic, especially for those who specialise in the area of Wills and succession planning.

Some of the key areas that the Law Commission have reviewed are:

• Electronic Wills: with technology constantly changing, one proposal is that Wills could be created and executed electronically. This would of course require robust systems in place to ensure the validity of the Will and prevent fraud and misuse.

• Protection against undue influence: there are suggestions that anyone making a Will (the Testator) should be protected from undue influence with changes to safeguard vulnerable individuals. Courts would be allowed to infer undue influence based on evidence rather than requiring direct proof.

• Dispensing powers for the Courts: the Courts would be given the authority to dispense with some formal requirements in some situations where adhering strictly to them might invalidate a Will which clearly reflected the Testators wishes., For example, if there are procedural errors in a Will, a Court would have the authority to ignore this if it felt that the Testator’s wishes were reflected in the Will and so the Court could uphold the Will.

• Mental capacity standards to be brought in line with the Mental Capacity Act 2005: the current test is believed to be outdated. If the standards for assessing mental capacity were in line with the Mental Capacity Act 2005, then this could provide modern criteria in determining testamentary capacity and protect individuals who have conditions affecting their ability to make decisions, such as Dementia.

• Revocation of Wills upon marriage to be abolished: the Law Commission’s view is that changing this could prevent vulnerable individuals being exploited in a predatory marriage. The existing Will would remain valid even after marriage, reflecting their original intentions.

• Wills for children: currently a Will can only be made by someone who is 18 or older; the proposals would extend this option to 16 and 17 year olds. The Court would also have powers to allow younger children to make a Will provided the child was competent to do so.

There are many more aspects to the proposed Bill which the Law Commission have delved into over the past eight years. These are certainly interesting times to see what aspects of the reforms the Government will adopt.

Fraser Dawbarns can assist you with preparing new Wills or reviewing existing Wills to take into account your wishes. Our team are adept at assessing testamentary capacity and providing you with the appropriate advice suited to your needs, whilst giving you peace of mind and helping you through this process. Please do get in touch.

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This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek advice specific to your own circumstances. Fraser Dawbarns LLP is always happy to provide such advice.