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Is Will writing about to be brought into the modern world?

Jul 31, 2017

A consultation has been launched by the Law Commission in a bid to draw public opinion on whether the laws on writing a Will are outdated.  Jane Cox, Private Client Partner here reviews the reasons behind the launch of the consultation and what the future could hold in terms of probate and estate planning.

The regulations around writing a Will have not been changed in many years, and with an estimated 40% of people dying intestate, that is dying without a Will, this could indicate that people are put off by the current method. 

“Dying without a Will is obviously something we all want to avoid, but for some reason people are unwilling to take that step,” begins Jane.  “Without a Will, the estate of the deceased will be distributed according to intestacy rules, which could be quite different to what they may have intended.  This is becoming a particular concern due to our changing family dynamics brought about by second marriages and our ageing population; people are not aware of certain rules that may make a previous Will invalid, or they may simply change their mind about where they wish their estate to go but are unaware about how they make those changes legal.” 

The consultation is based on three main proposals:

  • To soften the strict formality rules – the intention with this proposal is to relax the rules about procedure so that if the deceased has made their intentions clear in their Will but not necessarily followed the right process, their wishes will still be acted upon.  Currently, this is not always the case. For instance, the law presently requires a Will to be witnessed in a prescribed manner, if these rules are not strictly adhered to, then the Will is invalid.
  • To include a new mental capacity test which reflects the Mental Capacity Act 2005 – currently a person must take a means test to ensure they have capacity to write their Will, however the Commission believes this test does not take into account our developed understanding of diseases such as dementia.  Within this area, the Commission is also proposing the provision of statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a Will.
  • To make the age for making a Will lowered from 18 to 16.

“Other areas under consultation include the possibility of electronic Wills, a review of the rules protecting those making a Will from being unduly influenced by another person, and whether the rule that marriage revokes a previous Will should be kept or removed,” concludes Jane.  “The purpose of the consultation is to ascertain what the public views as the main barriers to making a Will, as well as sharing their own experiences if they have contested a Will and why. 

“We will concede that the rules are complex, however they are so for a reason.  These are incredibly important decisions that will impact a family’s future, and to loosen any regulations could leave the path open to misinterpretation of those rules and an increase in the number of Wills being contested, which is always distressing at an already emotional time.  We would always recommend that you seek advice in writing a Will, or making other plans for your future such as a Lasting Power of Attorney or Life Interest Trust Will, as experts will understand what is best for your personal situation and can advise accordingly.”

If you would like to take part in the consultation, which is open until the 10th November 2017, you can visit www.lawcom.gov.uk/project/wills.  For more details on making a Will, you can contact Jane or another member of the Private Client team on 01329 222075 or email privateclientenquiry@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interepreted as, legal advice.