Private client solicitors like myself witness firsthand the complexities and challenges clients face when it comes to estate planning. Amidst these challenges, our duty is to help ensure the intentions and wishes of our clients regarding their estates will be put into effect upon their death, including through the correct and effective use of a Will.
Many in the profession have long believed that the UK’s legal and legislative framework governing Wills is in serious need of reform and modernisation to bring it into the 21st century and to better serve testators and their families.
The recent proposals by the Law Commission, outlined in its Report: Modernising Wills Law include introducing electronic Wills and represent a significant shift in approach to testamentary dispositions. These recommendations aim to modernise the Wills Act 1837, reflecting advancements in technology and societal changes.
The Case for Electronic Wills
The Law Commission’s consultation acknowledges the increasing use of digital documents and signatures in various contexts, making electronic Wills more feasible. The pandemic highlighted the need for flexible solutions, leading to temporary measures allowing video-witnessed Wills. Building on this, the Commission proposes that electronic Wills be permitted, provided they meet stringent security standards to prevent fraud and undue influence.
However, the Law Society has expressed concerns about the potential risks associated with electronic Wills, particularly regarding fraud and undue influence. While recognising the benefits, they emphasise the necessity for robust safeguards and caution against disadvantaging those unable to utilise electronic means.
The Commission also proposes that the Courts have the power to make an order providing that a document or recording (such as an audio or audio-visual recording taken on a mobile phone, tablet or computer) be treated as a formally valid will. This would be a welcome change, however, to admit such a recording or document as a valid Will will still require a court application which can be costly and time consuming. Making a written valid Will would still be far preferable, time saving and cost effective. The probate registry is already understaffed and so an increase in unusual applications to admit testamentary wishes in non-standard formats is likely to result in longer delays for everyone. It could also increase the likelihood of disputes arising, in which case it may be difficult to provide evidence that a deficient Will represents the testator’s wishes if the main witness is deceased.
Addressing Undue Influence and Predatory Marriages
Another critical aspect of the Law Commission’s proposals is the reform of laws concerning undue influence and predatory marriages. Currently, challenging a Will on the grounds of undue influence requires direct evidence, which can be challenging to obtain. The Commission suggests allowing courts to infer undue influence from surrounding circumstances, thereby providing greater protection for vulnerable individuals.
This proposal is also welcome as the burden of proof to claim the Will was made under duress has generally made such applications very difficult. However, the specific rules will require thorough consultation and review. Flipping the presumption so that the purported “influencer” must prove they did not exert undue influence has the potential to also prove problematic if it is not thought through correctly.
Additionally, the automatic revocation of a Will upon marriage has been identified as a potential avenue for exploitation. The Commission recommends abolishing this rule to prevent individuals from being disinherited due to predatory marriages.
Mental capacity
The Commission also seeks clarification of the requirements for assessing the testator’s mental or testamentary capacity. Currently, this is done in multiple ways including citing the Banks v Goodfellow test as well as the modern test in the Mental Capacity Act 2005. The two tests do differ – with the MCA requiring a broader level of understanding of all the information relevant to the Will. The Commission’s proposal to only use one test – the MCA – in all circumstances, would provide welcome certainty as well as efficiencies.
The Need for Caution and Further Scrutiny
While the proposed reforms aim to modernise the Will making process, they also introduce complexities that require careful consideration. The Law Society advocates for a cautious approach, urging for detailed examination of the proposals to ensure they do not compromise existing protections or introduce new risks.
As legal professionals, it is our responsibility to stay informed about these developments and consider their implications for our clients. The possible introduction of electronic Wills and reforms to safeguard against undue influence and predatory marriages could significantly impact estate planning practices. Engaging in discussions about these changes and preparing for their potential implementation will be crucial in ensuring that we continue to serve our clients effectively and ethically.
Hardeep Nijher is a Senior Associate, and Lu Alaimo an Associate, in the Private Client team at Russell-Cooke LLP
One Response
After years of consultation and debate, the Law Commission has delivered its review and will reshape how wills are created, safeguarded, and delivered for a modern and digital society.
For centuries, the foundations of will writing has remained largely unchanged, however, in an era of digital innovation, evolving family dynamics, and heightened awareness of mental capacity, the need for reform has never been more pressing.
From the recognition of electronic wills to revisiting the rule that marriage revokes a will, this review promises to bring long-overdue clarity and digitalisation.
With consultations dating back to 2017 and renewed discussions in 2023 our expectations are high … will it deliver .. ?
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