will-making 21st century

Does will-making need to be brought into the 21st century?

It’s never easy to talk about the end, but it’s actually vitally important that we do it – and start doing it early. After the death of a loved one, the last thing anyone wants on their mind is arguments or confusion about the wishes of the deceased. But, when it comes to planning for the death of a loved one, we face serious obstacles to the open and honest discussion that is essential in preparing for the end.

The importance of discussing people’s wishes after death and expressing those wishes through the creation of a will cannot be understated. The costs of contentious probate issues are significant, in some cases exceeding more than £100,000. Yet, beyond the financial burden, the cost is equally clear in placing intense and unnecessary strain on individuals and relationships at an already difficult time.

Despite this, the current laws around will-making are complex. As it stands, needless formalities often prevent or deter individuals from expressing what they want to happen after their death. Lacking a formal will, red tape can stand in the way of even clearly expressed wishes. With inheritance disputes on the rise by a discomfiting 65%, the case for allowing the courts to depart from the formal requirements of a will is clear.

The recently published report by the UK Commission on Bereavement found that many people can feel overwhelmed by the scale and quantity of tasks that face them following a bereavement. In fact, one of the Commission’s eight core Principles for Change states that the things an individual has to do after a death should be “simple and straightforward.” Needlessly complex processes of will-making add unnecessary stress to the already challenging period that individuals face following bereavement.

The Commission itself was instigated in response to the Covid-19 pandemic. Covid drew attention to the issues bereaved people face, with increased mortality and many people unable to create legally binding wills due to lockdown restrictions. However, Covid also highlighted a fundamental truth; where there is desire, policymakers have the ability to move urgently to make significant legal changes.

The pandemic illustrated the challenges of the current model of will making – with witnesses harder to come by and it not always being possible to sign legal documents. But, at the same time, it highlighted the path to a more effective and humane system, which avoids the burdensome processes of contentious probate.

Raising awareness about will-making is the first step to solving this. The second, and equally vital, step is ensuring that when people do come to make a will, they are supported in doing so in a process that is simple, easy and widely accessible. Modern technology offers greater opportunities than ever before to make will-making more easily accessible. Should we choose to embrace the potential of digital technology in will-making, the law could dispense with the formalities that are such an obstacle for individuals. It could help make sure that where clear wishes exist, they can be fulfilled and implemented regardless of whether unnecessary formalities have been completed.

In recent years, the law has taken significant strides into the 21st century, with the introduction of no-fault divorce and the ability to file for divorce online as the clearest marks of this. It’s time for will-making to join other reforms in bringing our laws into the 21st century. Where appropriate, the law must be able to dispense with the formalities of a will to accommodate the clearly expressed wishes of the deceased. This would be a vital step in avoiding complex and fraught probate issues arising upon the death of a loved one. When a loved one dies, the bereaved can and should be able to grieve in peace. Talking about the end and embracing modern technology, can smooth the transition and remove pressure from families at the most difficult of times.

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