Is the Will Writing industry finally taking the first step into the 21st Century?

The four key recommendations:

Electronic Wills 

This recommendation is perhaps one of the most complicated aspects of the reform, though it is welcomed by many.  Alarmingly, still only 49% of UK adults have a Will in place; keeping up with the times and introducing an electronic option is hoped to increase this number (thus leaving more people protected on death). 

This being said, it is paramount that everyone understands what an electronic Will actually means.  Protections will still need to be in place, such as making sure sensitive data is securely stored and the public are protected (especially those who are vulnerable). Voluntary storage and registration systems for electronic Wills were encouraged.  It is recommended that a reliable system is used so that the testator and witnesses are linked to their signatures at the point of signing, the original Will can be identifiable as the original and not a copy and the original Will is protected from unauthorised destruction or alterations.

The Law Commission have put forward additional formality requirements to ensure that the provisions and software used are robust against things like fraud and undue influence, whilst also being practical for its users.  What these will look like in practice, though, are yet to be confirmed.

The process for making a paper based Will remains unaffected, so those who prefer pen to paper will still have that option. 

Reduction of minimum age to 16

Under the current legislation, the minimum age required for testamentary capacity, thus to make a Will in England and Wales, is 18.  It is recommended this be reduced to 16, giving 16 and 17 year olds the ability to choose where their assets pass, if they so wish (noting the Rules of Intestacy will take precedent without a Will, which isn’t always suitable or wanted for all individuals). 

This presses the already existing importance on the need for public awareness surrounding the topic of Wills, including knowing how to access suitable guidance and support to assist individuals in making informed decisions. 

The Rules of Intestacy are often mis understood, and mis assumed, by many - reducing the age for testamentary capacity is a good opportunity to really drive home what actually happens on death without a Will, and whether this is what individuals want. 

Marriage/Civil Partnerships to no longer revoke an existing Will

It has long been the case that entering into a marriage/civil partnership revokes an existing Will (unless the existing Will contains specific specialised drafting to reflect the intention that the Will is not to be revoked in these circumstances, though there are many wider factors to look at when determining whether this clause is upheld and this can be overruled by the Court), which is a scary thought when often a person can be deemed to have the capacity to marry but not the capacity required to create a Will.   Entering into a marriage/civil partnership is the only change in a testator’s circumstances that will revoke a Will. 

What the current rules do result in, is predatory marriages in the case of vulnerable individuals.  A predatory marriage is where someone marries an individual in order to inherit from them.  Inheritance disputes can often arise off the back of predatory marriages but, sadly, in these situations the marriage can take place rather covertly and the family have no idea.  Similarly, sometimes a predatory marriage can occur in situations where the deceased have had no family or loved ones around to spot the predatory marriage, thus even dispute the inheritance. 

That being said, there are concerns that this proposed change could actually lead to an increase in inheritance disputes, given the laws surrounding who can make a claim on an estate, as set out in the Inheritance (Provision for Family and Dependants) Act 1975, include one of such persons as a spouse/civil partner.  It is important to note that making a claim for provision can be costly and isn’t always affordable, and can result in wider family disputes, not to mention additional emotional stress for a genuine surviving spouse/civil partner.

What this suggested change does do, however, is emphasise the importance and the need for public awareness on the importance of a Will and the rules surrounding it, and a need for a strong educative campaign of the government. 

In any event, it is always recommended that Wills are reviewed after any significant life event (and in the absence of one, at least every few years). 

Increasing the Power of the Courts

This proposed change is very much welcomed in many respects:

Undue Influence

Undue influence when creating a Will is a difficult one to prove but it is, unfortunately, something that occurs and is on the increase.  It occurs when a person creates a Will does not truly reflect their intentions, but created it due to the influence of others.  Often, undue influence occurs behind closed doors and by someone close to the individual making the Will. 

It is proposed that the Court’s powers are increased to enable them to identify and crack down on this abusive behaviour – for example, giving the Court the right to uphold or void gifts in Wills given to a witnesses’ cohabiting partner.  This power is already in existence for the spouse of a witness, but it is important this is expanded due to the increase in cohabiting couples. 

Burden of Proof 

Currently, the burden of proof sits with the person disputing the Will i.e. they need to prove the Will or a part of it is invalid (whether this be on the grounds of undue influence, fraud, lack of testamentary capacity, etc.).  It is recommended this burden shifts to those who will benefit where circumstances are suspicious when a Will is created or changed. 

In practice, the burden of proving a Will is invalid can be a tricky one. 

Testamentary Capacity 

There are currently two elements that are used when assessing whether a person has the required testamentary capacity to create a Will.  These are the Mental Capacity Act 2005 and the common law test set out in Banks v. Goodfellow [1870].  We at Kinherit welcome this change, and agree that the principles established in Banks v. Goodfellow should still be used in assessing testamentary capacity, thus is recommended to be incorporated into the Mental Capacity Act 2005 Code of Practice.  This means the test for capacity can be under one statutory instrument, resulting in clear and concise rules across the board. 

Validity of a Will

It is recommended that the Court’s powers extend to having the ability to render a Will valid where their intentions are clear but the formality requirements of a Will, as set out in the Wills Act 1837, are not met. 

Currently, if the formality requirements are not met, regardless of how clear the deceased’s intentions are, the Will is not valid. 

We encourage this change, and support the recommendation that the Court’s can govern what happens to the deceased’s property in situations where there are clear intentions of the deceased’s wishes – through a recording of the instruction meetings, for example.