Where a person dies having made a valid will, that will determines who inherits the person’s property. If someone dies without a will, he or she is said to die “intestate” and statutory intestacy rules determine who will receive the deceased person’s property. It is estimated that 40% of the population die without a will.
The current procedure for making a will is established under the Wills Act 1837 and so you may agree it is long overdue an overhaul to bring Wills up to date. Society has changed considerably since our Victorian ancestors and the Law Commission has this morning issued a Consultation paper on making a will and has highlighted the following as an impetus for change.
(1) the ageing population;
(2) the greater incidence of dementia;
(3) the evolution of the medical understanding of disorders, diseases and conditions that could affect a person’s capacity to make a will;
(4) the emergence of and increasing reliance upon digital technology;
(5) changing patterns of family life, for example, more cohabiting couples and more people having second families; and
(6) that more people now have sufficient property to make it important to control to whom that property passes after their death.
Make a Digital Will
One of the leading elements of the Law Commission is to pave the way for the introduction of Digital Wills. We live in a digital world unimaginable nearly 180 years ago and if we can do our banking 24/7, arrange our utility provisions, why not create a will digitally for reasons of convenience, security, and cost saving?
On a daily basis we are shown headlines of cyber security, online scams and theft of identity. Add to this the threat of people creating a will being influenced & bullied into making a will or a will being forged and any electronic system needs to be extremely robust. Looking at the recent attacks on the NHS, who would like to wake up to find their will had been amended, erased or faked entirely and would anyone know until your death when it would be too late to fix it?
Have you watched a VHS lately or listened to a cassette tape? Some of the younger readers will no doubt be puzzled by these terms but consideration also has to be given to accessing any digital wills. Will the USB of today be the VHS of yesterday? Unlike some of our European counterparts, we do not have a national Will register with compulsory depositing of a will. Perhaps this is something that might be a positive result of any digital move.
Making a Will
Currently strict rules govern the creation of a will and the Courts have little power to ratify anything that falls short of these formalities. The consultation proposed that the Courts are given greater powers to validate documents where the intention of the testator is clear that this is intended to be how their affairs are resolved following their death.
The example given by the consolation is imagine that a testator makes a will. He clearly had capacity and followed all the formalities save that one of the witnesses who was present while the testator signed his will then signed her own name while the testator was absent from the room. Under the current law, formalities would not have been complied with because the law requires the witnesses to a will to sign while the testator is present. The testator’s will would therefore be void and on his death his property would pass under the intestacy rules, or under a previously valid will, if he had made one. But, in this example, neither the intestacy rules nor a previously valid will are likely to reflect the testator’s testamentary intentions. However, using a dispensing power, if the court were satisfied that the document represented the testator’s genuine testamentary intentions, it could choose to admit the otherwise invalid will to probate, so that his property would pass under the terms of that will.
There is also the proposition to lower the legal age to make a Will from 18 to 16.
Currently we have to turn to the Victorian era (1870) to find the case law surrounding the capacity to make a Will. The Law Commission has suggested that this now be governed by the Mental Capacity Act 2005 to bring will making in line with managing your affairs during your lifetime and reflect modern illness and medical advancements. Certainly this would seem extremely sensible.
Protection of Testator (Person Making A Will)
Currently, the circumstances in which a gift in a will can be set aside for undue influence are narrowly construed because the person claiming that undue influence has taken place must prove that was the case. In contrast, when a gift is made in a person’s lifetime, undue influence is presumed when certain factors are present.
The Law Commission suggests two approaches that a statutory doctrine of testamentary undue influence could take: a structured approach, or a discretionary approach.
The structured approach is modelled on the doctrine that applies to lifetime gifts. Under this approach a presumption of undue influence would be raised where two prerequisites are shown (1) the existence of a relationship of influence, which would be presumed in respect of some relationships; and (2) the disposition calls for explanation.
Under the alternative, discretionary approach, the court would have the power to presume undue influence if it were satisfied that it is just to do so in all the circumstances of the case. The court would consider the extent to which there was a relationship of influence between the deceased and another person and whether the nature of the gift is such as to call for explanation. While this approach would still bring in the concepts of “relationship of influence” and “a gift calling for explanation”, the more discretionary approach would put less pressure on the precise scope of those concepts and ensure greater flexibility in the Court drawing the presumption.
The Law Commission also flags up concerns about witnesses to a will. Currently if someone benefiting under a will or their spouse acts as one of the 2 witnesses the gift to that person fails. The Commission has proposed widening that to cohabiting partners and even parents or siblings.
There are also a number of other minor factors being considered in the consultation and the final report following the consultation period may add or remove to the proposals. Once the results of the consultation period are published we will be able to advise on any further developments.
What is clear is after lying dormant for nearly 2 centuries the area of will making is now firmly under the spot light, and together with recent proposed changes to the probate procedure and costs, means it remains vital to seek professional, fully trained Solicitors to advise you in this area of law. Our specialist Solicitors include STEP members, internationally recognised as experts in their field, with proven qualifications and experience and Solicitors for the Elderly. With 10 offices across Yorkshire and Teesside you are never far from one of our trusted solicitors.