The law on Wills is primarily contained within the Wills Act 1837 – legislation that is nearly 200 years old! Now long overdue for reform, the Law Commission has reviewed the law and published a report with their proposed changes. Here is what you need to know about the changes:
Electronic Wills
Up until now Wills have to be signed in person, on paper and with wet ink to be valid. The Law Commission has now proposed the electronic wills be made possible such that a Will may be signed electronically.
The exact requirements for this are not yet clear, but the Commission recommends the Will must be made/stored using a “reliable electronic system” to ensure security.
Age
Currently, you must be at least 18 to make a Will (unless you are at sea). The Law Commission report suggests the age be lowered to 16 and in exceptional circumstances, possibly even lower.
Under the current law, even if a person has earned significant money before the age of 18, they are not able to make a Will deciding where that money would go should they pass away.
Revocation by Marriage
A lesser-known aspect of Wills is that marriage automatically revokes an existing Will. The Law Commission propose that this rule should be removed as they note marriage is a less significant step in a couple’s relationship.
Capacity
The current test on whether a person has the capacity to make a Will is found from the case of Banks v Goodfellow (1870). The Law Commission suggests that instead the test for capacity should be the modern test found in the Mental Capacity Act 2005.
There has been significant advances in how mental capacity is understood since 1870 so this is a significant step in modernising the current law.
Undue Influence
Undue influence is the ground under which a Will may be challenged on the basis that the person making the Will was coerced in to making certain provisions. This ground has been notoriously hard to prove and has very few successful cases.
The Law Commission report suggests that courts be able to infer that a Will was made by undue influence where there are reasonable grounds to suspect it. This would lower the burden of proof on the person contesting the Will, possibly leading to more successful claims of undue influence.
The report includes other proposals but the changes above outline those most important to the general public. It is important to note, these are only proposals and not yet law.
If you are unsure about what these changes may mean for you or are generally seeking advice with your Will, please feel free to get in contact with our Private Client Team on 01304873344 or enquiries@mowll.co.uk. We are available to see clients at our Dover and Folkestone office as well as remotely.