Much of the law concerning Wills was established under the Wills Act 1837 and has changed little since. But now the Law Commission has published a consultation on updating the law of Wills to reflect changes in society brought about by technology and medical advances.
The proposals include:
- Giving the court greater flexibility to recognise Wills where the intention of the person is clear even where they have not followed the exact formal requirements of the Wills Act for creating a valid Will.
- Changing the test of whether someone has capacity to make a Will from the well-established test we have used for years (which requires someone to understand the nature of a Will, the assets in their estate and their moral obligations to potential beneficiaries), to the same test for capacity to make a power of attorney which was introduced by the Mental Capacity Act 2005. The intention is that this newer test better reflects modern understanding of conditions like dementia.
- The possible introduction of electronic wills.
- Lowering the age at which people can make a will to 16.
We will be watching the process of the consultation closely. It is important that legislation is reviewed and updated as society changes. Our plea will be that changes do not inadvertently introduce more uncertainty into Will writing when a Will is often the most important document a person will create in their lifetime.