Wills and probate update
Modernising the law of wills
STEP has been working closely with the Law Commission (England and Wales) on the public consultation on reform to the law of wills.¹
About the author
Emily Deane TEP is STEP Technical Counsel.
The current law of wills, largely derived from the Wills Act (WA) 1837, is understandably antiquated and requires an overhaul to modernise it for today’s society. The Law Commission would ideally like to implement changes which will reduce the number of wills that are challenged, and make it easier to rectify, after their death, will-drafting mistakes which were unintended by the testator. The commission explains: ‘Better, up-to-date law should encourage more people to make arrangements for when they die, and avoid the need for expensive litigation, which can divide families and cause great distress.’²
Significant changes in society, technology and medicine have prompted the commission to review the wills law. The ageing population and the vast increase in the incidence of senile dementia has brought the issue of testamentary capacity into debate, as well as the evolution of the medical understanding of disorders, diseases and conditions that can affect a person’s capacity to make a will. In addition, the increasing prevalence and reliance on digital technology has initiated review of how technology could be adapted to make electronic wills. The prevalence of second and subsequent marriages has also extended the number of family members who might dispute a will on undue influence or similar grounds. The consultation paper contains 14 chapters and 65 questions, with varying proposals for reform.
STEP has provided feedback on the majority of questions; however, the most pertinent issues facing our members have been the review of testamentary capacity; statutory wills; supported will making; formalities; electronic wills; the protection of vulnerable testators; and interpretation and rectification provisions. Some of STEP’s collective thoughts on these issues have been incorporated into the public consultation response, which was submitted on 10 November.³
One of the main issues for discussion is whether the test for mental capacity set out in the Mental Capacity Act (MCA) 2005 should be adopted for testamentary capacity, and whether the specific elements of capacity required to make a will should be outlined in the MCA's Code of Practice.4 The commission recommends aligning the test for testamentary capacity with that set out in the MCA thereby replacing the Banks v Goodfellow test ((1869–70) LR 5 QB 549).
It would be diÿcult to justify a valid reason why the proposal for incorporating the capacity test in the MCA should not be effected. Although the Banks v Goodfellow test has been updated via years of jurisprudence, it still pre-dates our modern understanding of mental health and the wording has remained the same. It would be prudent to reflect advances in clinical neuroscience in the legal criteria for testamentary capacity.
In light of the fact that the test originates from a ruling made in 1870, it would seem sensible to clarify and update much of the antiquated language which is not conducive to the modern terminology of the MCA. This would aid with the transparency of the will-making process, and make it more understandable to lay people. This would suit the commission’s objective of modernising the law and making it more accessible to the public. There may be difficulty in aligning both tests when the MCA test is prospective and identifies whether someone has capacity while they are alive, whereas the Banks v Goodfellow test is retrospective and applied after the testator’s death. These disparities would need to be considered in the drafting process.
STEP acknowledges the logic in incorporating elements of Banks v Goodfellow test into the MCA since having two separate tests can lead to confusion and, potentially, to litigation. We would recommend that the drafting process is open and transparent, and involves input from a number of different professionals.
It would be essential that the Code includes practical guidance with real-life scenarios and red- flag examples of when capacity should be called into question. There is currently conflicting case law on whether a practitioner should refuse to continue with the will drafting when capacity is in dispute and has not been fully verified; therefore, some more detailed and practical guidance would be welcomed in this connection.
Section 18(1)(i) of the MCA allows the Court of Protection to make a statutory will for someone when they lack the capacity to do so themselves. The commission invited comments on whether any reform could usefully be made to the existing procedure.
The current application for a statutory will is quite complicated and rather a lengthy process. There is a significant risk that elderly or frail testators might die before the last stage of the application has been completed. A sensible approach to streamlining the process would be to enable the court to make the will at the same time as the court order.
The consultation asks for views on a potential new scheme where testators, who may not have the capacity to make a will, can be supported by a third party to do so. STEP is in favour of a supported will-making scheme provided an accredited individual is acting and the proper safeguards are put in place. We believe that involving other professionals in the drafting process would result in a credible set of agreed principles, which need to consider potential conflicts of interest in relation to supporters as well as undue influence.
The commission queries whether the formalities which are in place to ensure that a will is valid actually deter people from making wills. We do not believe that there is evidence to suggest that the current formality rules are a deterrent for large numbers of people from making wills although, perhaps, they are more of a deterrent for those who do not wish to instruct a professional.
The paper also proposes introducing ‘dispensing powers’, which would enable a court to recognise a will as being valid even in circumstances where not all of the formalities have been observed. The dispensing powers would only be used in circumstances with a strong consensus that the will accurately reflected the testator’s intentions and should, therefore, override a technical formality rule.
The paper considers how the law should respond to the possibility of making a will electronically rather than on paper, and the potential challenges related thereto. STEP agrees tentatively with the development of electronic wills considering the current technology that is available; however, we believe that it should be the subject of primary legislation to ensure that the necessary safeguards and provisions are enabled. We would be discouraged to see the introduction of electronic wills which, subsequently, could make vulnerable testators more exposed to abuse than they already are.
We would also be particularly concerned regarding the possibility of signatures to wills being typed, which could generate abusive and fraudulent activity. A biometric system would need to be implemented to prohibit abusive behaviour, which may be outside of the scope of the commission’s budget.
The consultation contemplates the issue of protecting vulnerable testators in relation to knowledge and approval, undue influence and capacity. It is noted that it is essential to show that the will has been executed properly executed by a testator with capacity to do so, but also ‘truly reflects the wishes of the testator, and that those wishes were freely decided by the testator’ (Making a will, consultation paper, para 7.1). STEP is keen to advocate any reforms that promote the wellbeing of members of the public who are more vulnerable to abuse.
This section reviews how the law allows mistakes in a will to be rectified in certain circumstances, and the order in which a court should rectify and then interpret the will in accordance with the rectification. The commission is not considering any major reform beyond the reproduction, in any new statute, of the interpretive provisions contained in the WA and, potentially, the repeal of certain obsolete provisions.
The consultation looks at the rules of ademption, where a testator makes a gift, in their will, of property which the testator no longer owns at the date of death. Several different circumstances are considered:
- disposals of property by a person appointed under a power of attorney; and where:
- the testator dies before a transaction is completed;
- there is a gift of shares; and
- property is destroyed simultaneously with the death of the testator.
The commission asks consultees whether consideration should be given to changing the current rule that a testator’s marriage automatically revokes their pre-existing will. We believe that there is very little public awareness of the rule that a will is revoked on marriage, and propose that more is done to publicise it, potentially by way of registrars and churches providing more information on marriage. We are inclined to believe that retaining the automatic revocation upon marriage will probably mitigate the alternative option, which could potentially open the floodgates to litigation. n These summations are a brief synopsis of some of the views that STEP submitted in its consultation response, and do not represent the views of every STEP member.
1 Making a will, consultation paper 231, available at: www.lawcom.gov.uk/project/wills. The consultation closed on 10 November 2017. See also Professor Nicholas Hopkins and Damien Bruneau, ‘Law Commission consults on ‘Making a will’’, (2017) September CILExJ pp16 and 17.
2 ‘Law on wills to be brought up to date’, Law Commission press release, 23 July 2014, available at: www.lawcom.gov.uk/law-on-wills-to-be-brought-up-to-date
3 Available at: http://tinyurl.com/ybqftkao
4 Available at: http://tinyurl.com/z5qjp6z