How old is our wills law?! Time for change!

Jo Summers shares her thoughts on the areas of wills legislation most ripe for reform

The Law Commission launched its review of wills legislation in July 2017. After the consultation ended, the wills project was paused in 2019, while the commission undertook an urgent review of the laws on weddings. Now, the commission has re-opened the wills project, with the aim of publishing a second consultation document in September 2023.

What should be changed?

Given our Wills Act dates from 1837, I think it’s safe to say that it’s time for new legislation. But what should we change, and what should we keep? And can we learn any lessons from the wills laws in other countries?

This is my ‘wish list’ for the commission to think about!

Marriage revoking a will

I have seen many occasions when a client has re-married and sadly died before being able to re-do their will. It is often a surprise to all concerned, including the new spouse, that the will is invalid and the intestacy rules apply.

If you add in capacity issues, this automatic revocation can have cruel results. Take, for instance, a recent example where an elderly man married his carer. His family were convinced he didn’t have capacity to marry. A court decided he did, but that he didn’t have capacity to make a new will. Should the marriage to the carer have automatically revoked the will he’d put in place, in favour of his family?

Electronic signing

Clients are adapting to signing important documents online, whether that’s terms of business or a new lease. Should our laws permit wills to be signed by some electronic means, or would that increase the chances of undue influence or fraud? Some states in the US have accepted e-wills by statute.

Retaining two witnesses

During the covid-19 pandemic, we had to get creative to help clients sign their wills. Colleagues of mine sat in cars watching clients sign on the bonnet or looked through windows to see the client signing inside. (based on the Casson v Dade case of 1781, when a witness saw the signing through a window).

A temporary change of law applies to wills signed since 31 January 2020 (up to 31 January 2024) to permit signing via video link. But most of my clients felt this procedure was cumbersome, involving a (live) video link for the witnesses to watch the testator sign and then another video link for the testator to see the witnesses sign (twice if the witnesses aren’t together at the time), all on the same document (no counterparts allowed). With terminally ill clients, this creates a real risk of the testator dying before the procedure has been completed, meaning the will wouldn’t be valid.

Or should we allow for wills to be made in a recording, rather than in writing? This is popular in films/books in the US, but it seems no US state yet accepts recording wishes as a valid will. It may, however, be useful in explaining the rationale behind a client’s will, particularly if there is likely to be a dispute.

Accepting informal wills?

In parts of Europe, such as France, a client has a choice when making a will. They can either create a formal will before a notary, or they can hand write a will (known as a holograph will). A holograph will doesn’t need any witnesses. Given the latest statistics suggest that around 40 per cent of UK adults don’t have a will, perhaps introducing a holographic will option might encourage more people to create wills?

Wills in any format

Personally, I think we should be more flexible in the ways clients can record their final wishes, if circumstances mean following the formal rules is impossible. Take the Canadian example of Cecil Harris, who got trapped under a tractor in 1948. He etched the now famous words ‘In case I die in this mess, all to wife’ on the fender of the tractor, with a pen knife, and then signed it. The Saskatchewan courts accepted this as a valid holograph will, the fender itself being removed from the tractor and taken to court as evidence.

Conclusions

If it were up to me, I would look at permitting holograph wills, even if that reduces work for solicitors and will writers. I’d permit wills to be created in any format, like the Canadian tractor, where a testator is unable to follow the normal procedures. And I’d remove the automatic revocation of wills upon marriage. Sadly, it’s not up to me.

Jo Summers is partner at Jurit LLP and is a co-head of Jurit Private Wealth
jurit.com

This article contains my personal opinions and does not represent the official views of the Law Society (where I am a member of the Wills & Equity Committee) or of STEP (where I am on their practice guidance panel).