Reform of law surrounding Wills: from the Victorian-Era to the Digital-Era?

It is estimated that approximately 40% of people over 18 die without making a Will. To try and address this alarming statistic the Law Commission has this month launched a consultation proposing an overhaul of the current law on Wills.

Key provisions governing the validity of a Will can still be found in the Wills Act 1837. The Law Commissioner, Professor Nick Hopkins, posits that these Victorian-era formalities are ‘out of step’ with the modern world and that they could actually be putting people off preparing a Will.

The Law Commission proposals, therefore, include updating the procedure for preparing a Will to make it compatible with the digital age. Under the new proposals it is envisaged that people would be able to use text messages, voicemails and other electronic forms to record their wills. It would then be up to the discretion of county and high court judges to validate the will as an accurate summary of the person’s wishes. If a person on their deathbed has a change of heart then this could also be recorded and validated, overruling an existing valid will.

Under the present law, a Will must be written and signed by the testator in the presence of two witnesses who must also sign the Will in order for it to be valid. Whilst, this procedure might seem antiquated to some, relaxing these formal rules could have worrying implications and it presents significant challenges. For instance, it is feared that after the death of the testator a Will may be more easily contested by dissatisfied relatives and there are also concerns surrounding the protection of vulnerable testators and ensuring they are able to prepare their Wills without pressure or coercion.

The Law Commission’s other proposals include updating the test for whether an individual has the requisite mental capacity to make a Will to take into account the modern medical understanding of conditions such as Dementia. The Commission is also consulting on whether the age at which people can make a will should be lowered from 18 to 16 years old.

Whilst the proposals suggest that a significant departure from the current legal framework may be imminent, responses to the Consultation will provide the Law Commission with invaluable insight into both the advantages but also the hurdles and repercussions of such changes. The consultation period runs until 10 November 2017 and professionals, relevant organisations and the general public are invited to provide the Law Commission with feedback on the proposals.

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.