The Law Society’s Wills & Equity Committee have issued a response to the recent proposals to update the law around wills.
Yesterday, a consultation was put forward by the Law Commission, welcoming responses to its plans to bring will law up to date. These included enabling electronic communication to be recognised as a will, as well as amendment of the capacity test around making a will.
The proposals were met with both praise and criticism, with the main issues relating to security and the uncertainty of sentiment often behind electronic communication.
Sharing her thoughts on the proposals was Jane Whitfield, the Law Society’s Wills & Equity Committee Chair. She highlighted her agreement with the majority of the proposals but expressed some hesitancy towards the electronic element of the commission’s plans.
“We had a Committee meeting and the Law Commissioner was there with a couple of colleagues to go through the Consultation paper with us. It was an excellent opportunity to hear things direct from the source and to understand their thinking behind the questions being asked in the Consultation Paper. It was very positive and we had an open and helpful discussion.
“I agree completely with the contents of the press release, in that some areas I think will be reasonably straightforward and should not raise any contentious issues – for example, the introduction of “dispensing powers” which enable a court to recognise a will as valid even though formalities have not been complied with.
“The area of online will-making and electronic wills, however, is a different animal altogether. It is an area which has been in dispute amongst members of the legal profession for a number of years now, and there are no easy resolutions. The crux of the problem is that the SRA Code of Conduct places an obligation on solicitors to assess their clients on testamentary capacity and also to ensure that no undue influence has been exerted over the testator. The only fail-safe way to achieve that is to meet with the client face to face and on their own.
“I am delighted that the Consultation paper includes a review of the “golden rule” which has been in need of clarification for years.”
