The Law Commission’s consultation, which is open until 10 November 2017, invites views on how we can improve the legal system regulating wills.
The need to modernise our Victorian system
In 2013 the Commission undertook a public consultation which suggested that the law was not working.
Since then the Commission has been taking soundings and considering how our legal system can be improved.
Our law is still based on 19th century principles, with the Wills Act 1837 remaining very much in force.
Critics of the system say that our law needs to be brought up to date so that it takes account of modern technology and improved medical understanding of mental capacity.
Only 40% of us have a will
One driving force behind the proposed reform is the fact that an estimated 40% of the adult population don’t have a valid will. When a person dies intestate, without leaving a valid will, it can cause serious difficulties (financially and emotionally) for those who are left behind.
It is therefore highly desirable that more people make a will and it is believed this can be achieved by simplifying and modernising the legal process.
The needs of a 21st century society
Evolving social factors increase the urgency of a review of wills law. This includes factors such as:
- Our ageing population
- The growing problem of dementia and our medical understanding of degenerative mental disorders
- Increasing reliance on developing information technologies
- More complex family structures, especially those involving second families
- The wider distribution of wealth
The law Commission’s proposals
The Law Commission is considering proposals that include:
- Allowing the courts to dispense with the formal requirements for making a will where we can confidently discern what the deceased intended
- Revising the test for mental capacity to encompass modern medical knowledge of conditions such as dementia
- Introducing new rules to protect people from being unduly influenced
- lowering the age for making a will to 16.
- Allowing electronic wills
Will modernising the law lead to more inheritance disputes?
While the current legal process is undoubtedly antiquated, the system is not broken. The danger with any type of far-reaching reform of this nature is that it can create uncertainty. Legal uncertainty is the breeding ground of legal disputes. And a rise in the number of legal disputes will simply increase the levels of stress for those involved, which is precisely what the reforms are intended to avoid.
Our view therefore is that the Law Commission must tread carefully and take care not to overturn at a stroke a system that has gradually evolved over the last two centuries to protect vulnerable people and their assets. The use of new technology in particular introduces scope for the unwary to be taken advantage of. Any system that embraces it will need to demonstrate that it is not open to the sort of scams that are so prevalent in other areas of life where new technology dominates.
We would also question whether modernising the law will actually result in more people making a will. In our experience it is not the formalities of the Wills Act that is putting people off making a will.
Responding to the consultation
Responses to these proposals are being invited and you can have your say by contacting the Law Commission by email at: [email protected];