Wills Update: Changes Ahead?

The Law Commission are revisiting various aspects of their 2017 Wills Consultation, with a closing date for submissions of 8th December 2023.

The law governing Wills largely stems from the Wills Act of 1837 some 200 years ago – is it high time for an update, or “if it ain’t broke don’t fix it”?

Two particular points under discussion are:

  • Should E-Wills be allowed?
  • Should marriage automatically revoke a Will?

Electronic Wills

Recent years have seen increasing recognition of the use of, and ways to store digital documents. The discussion on electronic Wills is however stated to be technology neutral- ie focussing on the formalities we think are important for an electronic Will to be valid, rather than on types of technology used.

Should marriage automatically revoke a Will?

Concerns about predatory marriages have grown of late, prompting discussion about whether marriage should automatically revoke a Will.

It is interesting to note that some regard the test of capacity to marry has a lower threshold than the test of capacity to make a Will.

Points already under discussion

The below are already under discussion:

  • Should there be “dispensing powers” whereby a Court can rule that a Will is valid even if it doesn’t meet the very strict legal requirements needed? Along the lines of “we know what they were trying to do”. Would this help ensure testator’s intentions are given effect?
  • Should there be statutory guidance for professionals when assessing whether someone has the required mental capacity to make a Will, particularly in light of the modern understanding of conditions like dementia?
  • Should the age at which you can make a Will be reduced from 18 to 16?
  • Should testators be better protected under the law from undue influence- eg should there be a presumption of undue influence if there is a relationship of influence? Or if the gifts called for explanation?
  • Should there be a restriction on who can sign on behalf of a testator? – does the current lack of a restriction put testators at risk of fraud?
  • Should Mutual Wills be outlawed? These are Wills which two (or more) people can make Wills in such a way that in effect prevents the survivor, from changing his or her Will after the death of the first. It is commonly thought these are undesirable where someone wants to revise their Will due to changed circumstances.
  • Should Wills be registered?

What do you think? 

Link to consultation and ways to feedback are below

https://www.lawcom.gov.uk/project/wills/#:~:text=We%20launched%20our%20Supplementary%20Consultation,civil%20partnership%20revokes%20a%20will.

Hudda Morgan
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