On 13 July 2017, the Law Commission launched a consultation on reforming the law of Wills. The consultation paper provides an interesting read for practitioners and reminds us that much of the law of Wills is based on the original 1837 Wills Act.
Many would argue that the law has stood the test of time and therefore should not be changed; but on the other hand, is it right that such an important area of law be based on Victorian values and not reflect later changes in society, technology and medical understanding?
Amongst the recommendations is the proposal that the courts be given a "dispensing power" to recognise as valid a Will that would otherwise not be due to its failure to comply with the strict formalities required.
This would be useful, for example, in cases of elderly people isolated from others who are not able to obtain witnesses to their Will, or a terminally ill person wanting to make last minute changes to their Will. We all know that when time is of the essence that the strict requirements of the Will Act 1837 can be a financial and administrative burden on testators.
Another main proposal relates to the law of testamentary capacity. Currently, the law is laid down in the 1870 case of Banks v Goodfellow and later case-law. The Law Commission proposes that this be replaced by the capacity test set out in the Mental Capacity Act 2005. This is a more modern test, but it is not specific to Will-making.
An alternative option put forward is placing the Banks v Goodfellow test onto a statutory footing. This is an interesting idea but may well restrict the development of the law in the future. In my experience, the Banks v Goodfellow test works well and is well understood by practitioners, so it would be good to see it retained in some form.
As practitioners we need to ensure that strong safeguards are in place to ensure that the testator has testamentary capacity, is not under the influence of another and fully understands what they are doing in executing their Will. The challenge as always is to ensure that those protective shields are robust enough to protect the vulnerable from abuse.
Further proposals relating to capacity include the reduction of the testamentary age from eighteen to sixteen, and the introduction of a new statutory doctrine of testamentary undue influence. The former will be controversial but I can see the merit of it provided it is limited to exceptional cases, and not adopted as a blanket approach.
The consultation paper also discusses the controversial suggestion that "electronic Wills" (such as a Will in an email or text message) could be authorised in the future. It is not so far-fetched as one might think. There has been a 2017 case in Queensland (Re Nichol) where the deceased drafted a succinct text as follows:
Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten . A bit of cash behind TV and a bit in the bank Cash card pin 3636
This was permitted as a valid Will under by the Queensland courts using their "dispensing power" to discount the strict requirements of their Wills Act.
The Law Commission acknowledges that we do not currently have adequate technology to ensure that an "electronic Will" has truly been made by the testator, free from coercion, and properly witnessed. It therefore looks like we are some way off "electronic Wills" at present, but it is right to consider it for the future.
One can envisage that such an option would be of great use to soldiers on active service and, given that the Law Commission reports that around 40 percent of people die without a Will, it would have the advantage of making Will-making more accessible, thereby encouraging greater take-up.
The risk is of course that having a less formal process will lead to Wills being less well considered and possibly without appropriate advice, which could have consequences for the estate as well as in tax terms.
As always, a balance needs to be struck so that the advantages can be realised alongside appropriate safeguards for testators and their families.
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