Changes to wills – what is being proposed

Changes-to-wills-what-is-being-proposed

Changes to wills – what is being proposed

Earlier this summer the Law Commission published a consultation paper setting out its proposals for changes to the law when it comes to wills. They argue that the current law of wills is outdated and that in today’s modern world we can do better at protecting the vulnerable while honouring their wishes.

The existing laws have not changed significantly since Victorian times, despite the world being a very different place today than it was then. This outdatedness, coupled with the often complicated rules and regulations governing wills, means that around 40% of people do not have a will and many others are put off even trying to write one. Inevitably, this leads to many estates not being distributed according the wishes of those who have passed away or being challenged in the courts.

The Law Commission has therefore made a series of proposals to make the law of wills easier to navigate and ultimately lead to honouring the wishes of the deceased when the time comes. The proposals include:

  • Being less stringent on formality rules. Under the current rules a will is not valid if certain procedures have not been adhered to. This applies even where it is clear what a person’s intentions were and often results in their wishes not being honoured. One of the reasons for this is the application of a Victorian era test to determine mental capacity; with today’s medical knowledge this test is no longer valid. What is also often overlooked is that a new marriage will invalidate any previous will that a person may have made, which could lead to children from a previous marriage losing out.
  • Significant changes to the rules to protect against undue influence. Often this is used as a way of challenging a will, such as where a person chooses to leave part of their estate to a charity over family members. The proposals will help to avoid such unnecessary or unfair challenges where it is clear what the wishes of the deceased were.
  • Using the Mental Health Act (1995) to determine mental capacity instead of the current Victorian test. It is also proposed to provide statutory guidance to medical and other professionals to assist in determining whether someone has the mental capacity to make a will.
  • Making provision for electronic wills. While there are still some technical issues to be resolved with this, the proposals include a provision to grant the power to the Lord Chancellor to recognise electronic wills.
  • Lowering the age at which a person can make a will from 18 to 16 years of age.

These proposals go a long way towards shaking up what is an outdated law of wills. The public consultation was launched on 13th of July and will remain open for responses until the 10th of November.

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