Modernising the law of wills
Professor Nick Hopkins and Spencer Clarke discuss the Law Commission's proposals to bring the law of wills into the 21st century
It is estimated that around 40 per cent of adults do not have a will, which means that each year around 200,000 to 250,000 people die intestate. The intestacy rules provide a ‘safety net’ in determining who should receive the deceased’s property. For some, these rules may accord with testamentary wishes. But the rules are a blunt instrument and may not achieve what the deceased would have wanted. This is particularly so for cohabitants, or where the deceased has remarried and has children from a previous relationship. And the intestacy rules do not accommodate gifts to charity. Further, those left behind may never know whether the outcome is what their loved one would have wished.
The law governing wills should be fit for purpose, to encourage more people to make wills and ensure that testamentary wishes are given effect. Our review of the law of wills shows that it is not as clear as it could be, nor does it do as much as it could to protect the testator or to facilitate people to make wills. This is not surprising; the law of wills is based on Victorian-era statute and case law. The law has not kept pace with changes in society: an older population and different family structures; more dementia and evolving medical understanding of conditions which impair decision making; and the recent emergence of, and increasing reliance on, digital technology. The law needs to be updated to reflect these changes.
Our consultation paper ‘Making a Will’ sets out provisional proposals for, and questions about, reform. We have kept in mind three key policy objectives: 1) supporting the exercise of testamentary freedom; 2) protecting testators; and 3) increasing clarity and certainty in the law. Some of the key proposals consider changes to the test for testamentary capacity, the legal age for making a will, dispensing powers for judges, electronic wills, and the revocation of a will by marriage.
The central issue of testamentary capacity – whether a person has the capacity to make a valid will – is currently governed by the 19th-century judgment in Banks v Goodfellow (1869-70) LR 5 QB 549. We have heard that some lawyers have a great deal of affection for the Banks test and we think that there are useful features of the test which should be retained. However, for lay people, Banks can appear dated and unclear, and it significantly pre-dates modern understanding of mental health (for example, the significance of dementia in the context of assessing capacity).
We provisionally propose that testamentary capacity should instead be governed by the test set out in the Mental Capacity Act 2005. That would bring the language of the test into the 21st century and reflect significant medical advances since the 1870s. Lawyers, and, crucially, other professionals – such as those in the medical and social care professions – are familiar with the Mental Capacity Act, and its adoption would provide greater clarity.
We also propose the creation of a code of best practice on the assessment of testamentary capacity. This would replace the much-criticised ‘golden rule’, which stipulates that a medical practitioner should always be involved where the client is aged or has suffered a serious illness. The code would provide guidance on when, by whom, and how a testator’s capacity should be assessed. The helpful elements from the Banks test which specifically address the will-making context could be incorporated into that guidance.
The paper also discusses the possibility of creating a formal scheme to support people to make wills who, without such assistance, would not otherwise have the capacity to do so.
Children making wills
Currently a testator must be at least 18 years old to make a will. This minimum age is inconsistent with the equivalent rules in other jurisdictions and the age at which children can consent to medical treatment. It is also out of line with the increasing recognition of the ability of those under 18 to make decisions on matters that directly affect them. For some children with significant assets – perhaps where a child has received a large personal injury award – making a will may be desirable.
But wills can also be used for decisions other than the distribution of property – for example, arrangements for a funeral, or concerning the body after death – which informed children may reasonably want to make. A recent example is the case of Re JS  EWHC 2859 (Fam) where the mother and (estranged) father of a terminally ill 14-year-old girl disagreed about her wish for her body to be cryogenically preserved after her death. To resolve the dispute, the court prospectively appointed the mother – who supported her daughter’s wishes – as the sole administrator of the girl’s estate. If JS had been able to make a will appointing her mother as executor, then the dispute could have been avoided. We provisionally propose reducing the age of testamentary capacity to 16, and consider whether younger testators who have sufficient understanding should also be able to make a will.
A dispensing power
The formalities necessary for a valid will are set out in section 9 of the Wills Act 1837 and are well known to practitioners: a will must be in writing, signed by the testator in the presence of two witnesses, and signed by the witnesses themselves.
We do not propose to change these requirements. However, formality requirements operate strictly, so that non-compliance renders a will void, irrespective of how small the error or how clear the testator’s intention.
We propose the introduction of a ‘dispensing power’, so that a court could recognise a will as valid where it does not comply with the formality requirements, provided it is clear that the document contains the deceased person’s testamentary intentions. The new power would therefore introduce a degree of flexibility, acting as a safety net where such intentions would otherwise be defeated.
Unsurprisingly, given its age, the law assumes that a will is a paper document. Electronic wills might be easier, more convenient, more secure, and cheaper to make. However, questions such as how an electronic will would be signed and stored need to be worked out.
We therefore propose the creation of a statutory power enabling the introduction of electronic wills when such wills can provide sufficient protection for testators against the risks of fraud and undue influence.
To ensure clarity, we propose that the law should specify that electronic signatures cannot be used to make a will until the proposed enabling power is exercised. Otherwise there is a risk of insecure electronic signatures – such as a typed name at the end of an email – being held to be sufficient and resulting in testamentary fraud.
Revoking a will by marriage
Currently, marriage revokes any will made by a testator unless the will is written in contemplation of a particular, subsequent, marriage. We ask whether this rule should continue to operate.
We are concerned that the rule might be largely unknown. The rule may operate harshly on cohabitants who decide to get married, having already settled their testamentary affairs, and do not realise that their wills are thereby revoked. The rule does, however, have the benefit of protecting second families from the effect of an outdated will which does not make provision for them.
Interpretation and other areas
These topics are only some of those covered by the consultation paper. Others include: the interpretation and rectification of a will; what happens when a will makes a gift of specific property that is not held when the testator dies; privileged wills made by those in the armed forces; the need for a testator to know and approve of his or her will; and undue influence.
With respect to undue influence, for example, we provisionally propose the creation of a statutory doctrine of testamentary undue influence, tailored to the particular circumstances of the will and allowing a presumption of undue influence to be drawn.
Professor Nick Hopkins is the commissioner in charge of the will reform project and Spencer Clarke a lawyer at the Law Commission