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Outdated law of wills ‘needs overhaul’ to reflect modern world

Sep 29, 2018, 21:08 PM
Wills, consultation, Law Commission, reform, Mental Capacity Act, electronic wills, dementia, statutory guidance
To tackle urgent issues surrounding the law of wills, the Law Commission is consulting on proposals to soften strict formality rules, to introduce a new mental capacity test which will take into account the present medical understanding of conditions like dementia, and to reduce the age for making a will to 16.
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Date : Jul 13, 2017, 02:43 AM
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To tackle urgent issues surrounding the law of wills, the Law Commission is consulting on proposals to soften strict formality rules, to introduce a new mental capacity test which will take into account the present medical understanding of conditions like dementia, to reduce the age for making a will to 16, and to give the Lord Chancellor power to make provision for electronic wills. The consultation closes on 10 November 2017.

What issues does the consultation seek to address?

According to the Law Commission the ‘Victorian’ law of wills is out of step with the modern world, fails to protect the vulnerable and prevents individuals from being able to distribute cherished possession once they’re gone.

The body also said that, with an estimated 40% of people dying each year without a will, the law of wills could be putting people off writing one.

What is the Law Commission proposing?

The Law Commission is consulting on the following proposals:

  • to give the court power to recognise a will in cases where the formality rules haven’t been followed, but the will-maker has made clear their intentions;

  • an overhaul of the rules protecting those making a will from being unduly influenced by another person;

  • the application of the test of capacity in the Mental Capacity Act 2005 to the question of whether a person has the capacity to make a will;

  • to provide statutory guidance for doctors and professionals conducting assessments of whether a person has the required mental capacity to make a will;

  • to give the Lord Chancellor power to make provision for electronic wills; and

  • to lower the age at which people are able to make a will from 18 to 16 years old.

The Law Commission is also asking the public what the main obstacles are when constructing a will and the problems encountered in disputes over wills following the death of a loved one.

The ‘terms of reference’ for the consultation

Regarding the consultation, Law Commissioner Professor Nick Hopkins said: 

‘The project is a wide-ranging review of the law of wills, including capacity, formalities, undue influence, electronic wills, supported will-making, ademption, interpretation, mutual wills, donatio mortis causa, privileged wills and whether children should be able to make wills.’

Hopkins said, however, that terms of reference do not ‘extend to the laws of intestacy (the subject of previous Law Commission projects), probate, family provision or estate administration. Nor do we consider the regulation of those who write wills, given the relatively recent report by the Legal Services Board on this issue’.

Clarifying the law and supporting last wishes

Hopkins says the proposals do more than just bring the law of wills into the modern world: 

‘Our provisional proposal will not only clarify the law, but will also help to give greater effect to people’s last wishes.’

The full paper and a summary are available here. The Consultation closes on 10 November 2017. Responses can be sent via email to propertyandtrust@lawcommission.gsi.gov.uk  or by post to Damien Bruneau, Law Commission, First Floor, Tower, Post Point 1.53, 52 Queen Anne’s Gate, London, SW1H 9AG.

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