The project to modernise wills law book-ends the career of Professor Nick Hopkins in his role as the Commissioner for Property, Family and Trust Law at The Law Commission as he departs in the coming months following the end of his tenure. Included in the 12th programme of law reform in 2014, the work has twice been paused, with the government prioritising work on weddings. A supplemental consultation in 2023 specifically on electronic wills and the revocation of wills by marriage and civil partnerships has informed the near-500 page report published in the last couple of weeks.
In the latest Today’s Wills and Probate Podcast the commissioner sat down with David Opie in a wide-ranging interview to discuss the culmination of 10 years’ effort.
Hopkins explains the focus of the report is tackling the major changes in law and society over the last 190 years. It’s a challenge he concedes, but says there were three main aims that drove the commission’s recommendations
- Ensure testators’ testamentary intentions are given effect
- Protect vulnerable testators
- Provide greater clarity and certainty in the law
He points to the example of electronic wills as one area where greater clarity is required given the acceleration of technology in recent years, and in changing attitudes in the years since the research was first conducted; indeed the supplemental consultation shone a spotlight on the current formality requirements and role of technology says Hopkins. He recognises the concerns people have around what could be considered a lack of clarity over electronic wills but points to the challenge of defining something which could, by the time legislation can be passed, could very well be out of date. Technology moves much quicker than law and so the purpose of the commission’s recommendations was to take a ‘technology neutral’ approach. Instead the commission recommends what functions and standards must be met in order for the formalities to be legal.
“I can understand the concern within the profession there’s going to be this new thing called an electronic will and people can’t quite picture whats it’s going to look like. But that’s not because we’ve fudged it but because the primary legislation must be fit for purpose into the future.”
Defining an electronic will as one that has been executed and storied electronically Hopkins is clear the ‘guiding principle’ must be digitisation provides the same protections as a paper will; no more no less. ‘We’re not holding electronic wills up to a higher standard’ he says adding the additional requirements outlined in the recommendations as the ‘reliable system’ include
- certainty when the will is signed the person signing is linked to their signature
- the will can be distinguished from any copies
- it cannot be altered or destroyed unintentionally.
It is likely the operation of this technology will be developed over time.
Concerns have been raised over the potential for an increase in litigation as a result of the recommendations, which include introducing a dispensing power to give effect to a testator’s intentions where a Will is invalid or where a person’s intentions are clear; and rectification where a court is satisfied the will does not give effect to the testator’s intentions because the drafter failed to understand the meaning or direct effect of the language used in the will.
There has been an increase in contentious probate claims in recent years but Hopkins is sceptical of the scale of the increase.
“I’m not denying that rise is there, but it has to be seen in context. Most wills are admitted to probate. Yes there has been an increase but in percentage terms the vast majority are unchallenged.”
The recommendations draw on the experiences of other jurisdictions where there has not been a ‘disproportionate’ rise in litigation. A ‘small increase’ for the purposes of testamentary intention and protecting vulnerable people is a legitimate one he suggests.
Is he concerned any increase will impact an already overloaded courts system? The commission ‘questions at every stage’ whether what it’s doing could lead to additional litigation; and whether that increase is legitimate and what impact it could have. There’s a balance Hopkins suggests; ‘we’ve highlighted areas where our recommendations could lead to an increase in litigation but stepping back and looking in the round we’re providing a modern clear piece of legislation. Wills law is heavily imbued and developed by the courts. We don’t have any doubts or concerns about the ability of the court to apply what is set out in the draft bill.
On the recommendation to have just one test of capacity Hopkins says the commission was keen not to ‘throw the baby out with the bathwater’ and use the lessons of Banks v Goodfellow but use the Mental Capacity Act (MCA) as the main test. He adds this is not a case of the test being higher or lower but it is going to be a bit different and MCA is a more familiar test to those other than lawyers, who are involved in making decisions about a person’s testamentary capacity.
MCA would also be the primary test for children who want to make a will, with one of the recommendations being the reduction of the age limit from 18 to 16; this reflected issues raised with the law commission around terminal illnesses where children have assets or want to be able to decide who makes decisions about their body after death.
On what happens next Hopkins is confident. Around two thirds of the commission’s reports are taken forward by government and the associated draft bill is designed to streamline the process. But there is no picking an choosing from the recommendations says Hopkins. They have been designed and considered in the round, acknowledging their impact on other areas of law and taking that into account, working together as a coherent piece of legislation. ‘What we’ve provided the government with is a complete package of reforms and a bill to implement them’, he concludes.
You can listen into the full interview on the Today’s Wills and Probate below and available on your preferred podcast provider. Subscribe today to hear all the latest news and views across the wills and probate sector.
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