On 16th May, the Law Commission produced a report and draft bill for a new Wills Act to replace the Wills Act 1837. The report has taken nine years to produce and aims to modernise the law currently governing wills which has been in place since Victorian times. Although the new Wills Act is far from becoming legislation, solicitors and other professionals need to familiarise themselves with the proposed changes to ensure that they continue to advise clients effectively. This article does not aim to address all 31 recommendations made by the Law Commission but to highlight a few of the issues for practitioners to be aware of.
The report recommends that the mental capacity test in the Mental Capacity Act 2005 be adopted to determine testamentary capacity, replacing the Banks v Goodfellow test established in 1870. Solicitors may wish to refresh their memory of the capacity test at section 2(1) of the Mental Capacity Act 2005 and look out for the publication of detailed guidance on assessing testamentary capacity in the Code of Practice to the Mental Capacity Act 2005. Advisers should also note that this change means that a person should be assumed to have capacity unless the contrary is established.
An interesting point which may come up when solicitors are acting in the administration of an estate, rather than drafting a will, is the recommendation that a dispensing power be introduced. These powers already exist in some jurisdictions and would permit judges to validate wills where the testator’s intentions are clear even if the will making formalities have not been met. Solicitors will need to be able to recognise such documents (which includes electronic documents and sound and video recordings) and consider if they are likely to meet the civil burden of proof and if a court application is therefore appropriate.
The Law Commission has recommended that electronic wills be permitted under the new Wills Act, but that additional requirements will apply for them to be valid. The testator and witnesses would need to be linked to their signatures at the time of signing meaning that solicitors may need to familiarise themselves with the technological tools that enable this once more detail is available. Solicitors may think that they will simply not get involved in electronic wills and avoid the issue entirely, but they will need to be able to recognise valid electronic wills when instructed to administer an estate. Additionally this new process might, for example, simplify execution of a will for a client in hospital and practitioners will need to be able to provide the appropriate guidance on how the process works.
One aspect of the report which has received media attention is that marriage or civil partnership will no longer revoke a will. This has been described as a move to help prevent predatory marriage where an elderly or vulnerable person is induced into marriage despite lacking capacity, as a form of financial abuse. Solicitors will be able to dispense with their precedent clauses about non-revocation on marriage, and should remain alert to when it is appropriate to offer advice on the possibility of claims under the inheritance (Provision for Family & Dependants) Act 1975.
Solicitors need to be aware of the recommendation on changes to gifts in order to provide correct advice. These recommendations relate to gifts to somebody signing the will on the testator’s behalf, to cohabitants of that person and cohabitants of witnesses. Solicitors should look out for further guidance on the definition of cohabitant which is a broad term.
The Law Commission has recommended that the age at which a person can make a will (or at which a statutory will can be made on their behalf) be lowered from 18 to 16 and that the Family Court should have the power to authorise a child of any age to make a will. It is not envisaged that such clients will be common but there are children with substantial assets, perhaps as a result of a damages award, or who are suffering from terminal health conditions. Solicitors should be aware that they may receive valid enquiries from younger clients, consider their compliance requirements for AML in those circumstances, and be able to advise when an application to the Family Court might be appropriate.
Anne Stockley is an Associate Solicitor in the Wills, Trusts & Probate Team at SA Law
