13 July 2017
Law Commission proposes shake-up of ‘Victorian’ will rules
The Law Commission has announced that is launching a consultation proposing that courts should be allowed to recognise electronic communications from a will-maker in certain situations. It forms part of a major bid to update what they consider ‘Victorian’ rules around creating a will.
It would mean messages or emails from phones or tablets that are currently not valid under existing rules would be recognised if the will-maker has made clear their intentions and it is approved by the court.
People are also being asked their views on a proposed mental capacity test which takes into account the modern understanding of conditions such as dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.
Law Commissioner Professor Nick Hopkins said:
"Making a will and passing on your possessions after you’ve died should be straightforward. But the law is unclear, outdated and could even be putting people off altogether.
"Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.
"That’s not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes."
"People’s family circumstances are more complex these days, and the formal process of making a will allows individuals to take advice, consider all moral obligations, and structure their affairs in a fair and balanced manner.
"You have to query whether someone on their death bed, having access to leave instructions by email or text, is in the right frame of mind to make those decisions. Capacity to make a will has always been and should remain a vital component and the current process puts safeguards in place to ensure this is the case.
"It also opens up a huge risk to vulnerable adults being coerced into changing or making a will against their wishes. This in turn could lead to heightened, costly litigation as disappointed beneficiaries may challenge the content.
"That said, the proposal to provide a greater discretion to the courts to consider wishes which may not have been recorded in the ‘traditional’ way could be seen as a positive move in limited circumstances. We have to accept that there will be circumstances where people have set out their wishes but not had the opportunity to ‘formalise’ them in a will. Allowing the court to make a decision on this would be extremely helpful."
Deadline for the consultation is 10 November 2017.