This article was published on July 28th, 2017
The Law Commission has stated that the ‘out-dated’ and draconian laws surrounding wills must be changed to be more in-line with the modern world.
One of the key changes suggested by the Commission is to grant the lord chancellor the power to make provisions for electronic wills, currently, all wills are drafted by hand.
In a consultation document, the Commission stated that laws as they currently stand are failing those who are most vulnerable in society, with the mental capacity test relying on Victorian era ideologies such as ‘delusions of the mind’ as a basis for determination. These do not reflect today’s understanding of medical conditions such as dementia where a patient’s mental capacity varies from day to day.
Many who do complete a will are still subject to their wishes being challenged if the formal rules are not followed to the letter when the will is drafted, even when the deceased’s wishes are explicit. With an estimated 40% of adults dying each year without a will, it is clear that something must change in order to safeguard as many people as possible.
Law commissioner Nick Hopkins said: “Making a will and passing on your possessions after you’ve died should be straightforward. But the law is unclear, outdated and could even be putting people off altogether. Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making like dementia, aren’t properly accounted for in the law.”
The Law Society has welcomed the Commission’s suggested reforms, but have questioned some of the proposals, highlighting that they raise some ‘challenging questions’.
President of The Law Society, Joe Egan said: “Some of the proposals, such as allowing the court more flexibility when there are harmless errors in a will, but the deceased person’s wishes are clear, show immediate promise and are likely to get a positive response from solicitors. Others, such as enabling wills to be made electronically in the future, raise important but challenging questions, especially on how safe electronic wills would be from fraud or undue influence against vulnerable people.”
Other proposals from the Commission include abolishing the term ‘testator’ in favour of ‘will-maker’, decreasing the age that an individual is eligible to create a will from 18 to 16 and also as aforementioned, legalising electronic wills.
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