It may come as a surprise but the laws governing Wills date back to 1837. In the last 150 or so years, there have been many changes within society, families and the law generally. There are more people cohabiting, remarrying and, as a whole, people are living longer.
In view of this, the Law Commission has spent a year reviewing and researching the laws. Their research, which has been backed by leading representative bodies, has found that the law is out of touch and therefore requires modernisation to bring them up to date in order to reflect modern day life.
The current legislation, which sets out the formalities for a valid Will, is Section 9 of the Wills Act 1837. These include formalities such as the Will must be in writing and signed in the presence of two witnesses who are also required to sign.
There are other formalities and, therefore, it is always advisable to obtain legal advice when considering preparing a Will.
The Law Commission’s aim is to make it easier for people to pass their assets to their chosen beneficiaries.
The proposals include:
lowering the age at which a Will can be made from 18 to 16;
changing the test for capacity to take into account the modern understanding of conditions such as dementia; and,
somewhat surprisingly, looking at proposals which could enable the Court to dispense with the formalities of Will writing if it is clear what the individual’s testamentary wishes were.
The proposals also include the introduction of electronic Wills, something which has never been recognised as being valid in this jurisdiction.
An electronic Will does not necessarily mean a text or an email but the suggestion is for the use of digital technology to become more prominent in the various stages of drafting and preparing a Will. It has also been suggested that perhaps a Will could be electronically signed, for example, with an electronic signature.
The Law Commission estimates that 40% of the population do not have Wills in place. It is hoped that if a system of electronic Will making can be made practicable, Testators might find it easier to exercise their testamentary freedom.
If electronic Wills are introduced there could be new (as well as existing) challenges to ensure that individuals making a Will are protected against fraud and exploitation.
The consultation, which can be found on the Law Commission’s website, is set to close in November 2017. The Law Commission have invited the public and professionals to give their response to the proposals.