The law of wills

Law Commission consults on 'Making a will'

The Law Commission is currently conducting a consultation on the law of wills.* The consultation is open until 10 November 2017.

About the author
Professor Nicholas Hopkins is Law Commissioner for property, family and trust law, and Damien Bruneau is research assistant on the wills project.

The fact that the law of wills in England and Wales largely dates back to the Victorian era is at the heart of many of the problems that we consider in our consultation paper. We believe that the law of wills is in need of an overhaul, and welcome responses to our provisional proposals and questions (see box opposite).

Background and scope

A project on the law of wills was recommended to the Law Commission by a number of leading representative legal bodies and by a wide range of practising lawyers specialising in wills work. The consultation is limited to the law of wills, and does not consider issues of succession law more generally, such as family provision or the intestacy rules.

Our consultation is underpinned by three key policy objectives:

• supporting the exercise of testamentary freedom;
• protecting testators; and 
• increasing clarity and certainty in the law.

In this article, we explain several of our main provisional proposals, particularly those which are pertinent to the practices of CILEx Journal readers. We cover mental capacity, supported will making, a dispensing power, and electronic wills. In the consultation paper, we also consider statutory wills, undue influence, knowledge and approval, interpretation and rectification, ademption, revocation, mutual wills, donatio mortis causa, and whether children should be allowed to make wills.

Capacity to make a will

The consultation paper addresses three issues related to mental capacity:

• what the test of capacity should be; 
• who should assess capacity in difficult cases; and
• what guidance should be given to those charged with assessing a testator’s capacity.

The current test of capacity is set out in the case of Banks v Goodfellow (1870) LR 5 QB 549. The test is well-known and understood by practitioners, but unfamiliar and less readily comprehended by those who only occasionally come into contact with the law, including testators themselves. We believe that it is outdated, unclear and significantly pre-dates a modern understanding of mental health.

Consequently, we provisionally propose that the test in the Mental Capacity Act (MCA) 2005 should govern testamentary capacity. This test is equally familiar to many legal practitioners as well as to professionals in other fields, such as medicine and social work, who may be asked to assess testamentary capacity. It reflects modern conceptions of capacity, and its extension to the testamentary context would bring further clarity to the law.

We believe that the law of wills is in need of an overhaul, and welcome responses to our provisional proposals and questions

Guidance as to who should assess capacity in difficult cases does not currently go much further than the so-called ‘golden rule’, ie, a doctor should assess the capacity of all elderly testators. We believe that there is scope for significantly better guidance, and provisionally propose the introduction of a statutory code of best practice. The code would be an addition to the current code of practice for the MCA. It would provide specific guidance as to when, by whom, and how the mental capacity of a testator should be assessed. The introduction of a code would also allow the most useful elements of the Banks v Goodfellow test to be kept. For example, the direct references to the need for testators to understand the extent of their estates, the nature of making a will, and who their beneficiaries might be.

Supported will making

We have also turned our attention to those testators who are at the margins of having the mental capacity required to make a will. Consultees have told us about a number of good practices among practitioners to support such clients to make a will. They might help testators to understand the act of making a will by, for example, using pictures to represent potential beneficiaries, or sugar cubes to represent portions of the estate. In that way, testators are helped to have the understanding, and therefore the capacity, necessary to make a will.

We noticed a parallel between this kind of support and that offered in other contexts; for example, by independent mental capacity advocates, and Care Act advocates (under the Care Act 2014). We note that it might be possible to create a similar formalised scheme of support with relation to testamentary capacity, albeit that it would be unlikely to be publicly funded, and ask consultees for their views on the feasibility of such a scheme.

Judicial power to dispense with formality requirements

We provisionally propose that a power is introduced allowing a court to dispense with the formality requirements in certain cases. The power will be useful when – due to accident or necessity – a testator has failed to comply with the ordinary formality rules. Where it is, nevertheless, clear that a record or document contains the settled testamentary wishes of the testator, the court would have the power to treat that record as a will.

This power would not create a new way in which testators can create wills. The only way for a testator to be certain, in advance, that a document is going to be a will would be to comply with the formality rules and create a valid will. Furthermore, a dispensing power does not obviate the other requirements for making a will, such as capacity, knowledge and approval, and the absence of fraud or undue influence. In cases where the power is exercised, the scrutiny of the court will stand in for the formality rules in ensuring that any record treated as a will was created freely and intentionally by a testator who had capacity to do so.

Dispensing powers exist in many other jurisdictions, including all of the Australian states, South Africa, and many parts of Canada and the USA. Arguably, this is an area in which the law of England and Wales has failed to keep pace with the rest of the world.

Electronic wills

It is trite to say that we live in an increasingly digital world. People enter contracts via e-mail, and companies transfer billions of pounds at the press of a button. Yet wills remain paper documents, signed by hand, in wet ink, and in the physical presence of two witnesses. We have thought about why this is the case, and whether wills could be made using purely electronic means. We are optimistic that they can be and that doing so could ultimately be more convenient, more secure and cheaper than will making is now. However, significant challenges will need to be overcome before electronic wills become a reality.

The physicality of the formal requirements that apply to paper documents creates a degree of protection against forgery and undue influence. The presence of witnesses and a wet-ink signature provide valuable types of evidence that are not easily replicated in electronic documents. We believe that it is crucial not to undermine that protection as we move towards electronic will making.

In our paper, we focus on electronic alternatives to wet-ink signatures. Those methods appear to raise several challenges related to security and the infrastructure necessary to facilitate electronic signatures. We call for evidence about how those issues can be overcome. We provisionally propose the creation of a statutory power enabling the introduction of electronic wills that provide sufficient protection for testators against the risks of fraud and undue influence.

*Making a will, available at: http://www.lawcom.gov.uk/project/wills/