Despite attempts to deliver conclusions of the Wills Project consultation before the end of the year, the Law Commission have been delayed by a Marriage Project which will take precedence.
In 2013, the Law Commission conducted a public consultation on the contents of the 12th programme of Law Reform.
Based on the consultation, leading representative legal bodies highlighted where the Victorian law is failing modern society. In particular, the areas of testamentary capacity and formalities were considered.
Since the initial consultation, the Law Commission have focused on ways to update the Wills Act of 1837 and the currently used capacity measure from 1870.
It is anticipated that the report will propose clear changes on the test for capacity to take into account the modern understanding of conditions like dementia. This will help to create a practical guidance for doctors and other professionals when making a capacity assessment for Wills.
Using the findings from the Marriage will certainly help to inform the Wills report and law surrounding inheritance. A more up to date consideration of the modern family should be taken into account. According to the ‘The Will writing industry in 2018 report,’ people who are married or in a civil partnership as well as those that are separated or divorced are more likely to have a Will than adults who state that they are living as married without the legal documentation to accompany their lifestyle.
Over half (58%) of adults who are married or in a civil partnership have a Will compared to only 30% of respondents who are living as married. It is clear that more clarity is needed on people without a legal connection through marriage or civil partnership. The law needs to take this growing section of society into account when making inheritance laws to avoid the intended beneficiary from losing out because they have limited legal rights.
Stephen Oliver, of The Will Company, said: “The impact of changing families is that there is more of a need for research when dealing with someone who wants a Will.”
“A financial advisor will generally investigate the whole family dynamic, help plan to ring fence the estate and help think through who may potentially contest the Will. You shouldn’t just look at the individual. We need more and more fact finding and research to come up with the right Will.”
The Law Commission have said: “The timetable for the wills project is being reviewed as the Government has asked the Commission to consider the law relating to how and where couples can be married. Further announcements will be made once Terms of Reference for the weddings project are settled with Government.”
Whilst the research and findings of the consultation may be delayed beyond the expected deadline of the year’s end, ensuring that the law works in our modern society will be a huge consideration in 2019.
Are you aware of probate problems because of modern family dynamics? Is it more difficult to assess a person’s capacity to make a Will in the modern world? What changes would you like to see to existing law?
2 responses
The wills act 1837 has been changed in many countries to enable the true intentions of a deceased wishes to be shown in court under a fair public trial in order for the deceased flawed executed wills/codicils be followed if there is sufficient evidence that it was the deceased last wishes.
In England and Wales the law is so strict that there is no way to challenge the decision when probate plan to follow outdated wishes from a previously correctly executed will, currently the law handcuffs the probate department to following strict rules and does not enable them to get to the truth of the case.
I believe not being able to challenge this in a fair trial is against the deceased human rights and their spouses and children’s human rights, if there is clear evidence to present to a court to show the true wishes of the deceased then this needs to be heard within a fair and level playing field.
I have been informed in order to challenge this sort of issue, where archaic laws breach human rights would cost hundreds of thousands of pounds and maybe millions, is this the case? And in this day and age how can this be that we still have unjust laws
Is there any update to the suggested provisions and additions to the Wills act reform?