Modernising the Wills Act 1837

The way Wills are written stems from the Victorian era, but that will soon become a thing of the past with the recent publication of the Law Commission’s report into the modernisation of Wills and the law around testamentary freedom.

Some of the recommendations include the enablement of electronic wills; the abolition of the law that revokes a Will upon marriage; and the updating of the test for testamentary capacity to recognise the modern test in the Mental Capacity Act 2005.

“This is long overdue and hugely welcomed,” said Private Client Solicitor, Joanne Jones.

“The Law Commission says their report aims to ‘clarify the law and to ensure it is fit for purpose in the modern age’ and that can only be a good thing for clients.

“The last significant changes we saw to Will writing were forced upon us overnight during the pandemic, which highlighted the advantage of being able to witness will signings remotely and, moving forward, the provision for electronic wills, but as always we need carefully though through legislation and a reliable and robust system in place.”

Modernising Wills Law

The "Modernising Wills Law" aims to update the Wills Act 1837 and includes a draft Bill for a modern Wills Act.

“This legislation would bring Will writing right up to date and fit for contemporary clients,” added Joanne.

‘Most people will live longer than their ancestors did, and as a consequence, more people will suffer from ill health and a decline in their mental capacity,' the commission said. 'The property the average person owns may be more valuable than it was in the past. Not so long ago, documents would have been in paper form only, but documents in electronic form are now far more prevalent.'

Proposed changes to the Wills Act 1837

The key recommendations proposed are:

• Electronic Wills with additional safeguards to protect the testator and ensure the security of the will.
• The abolition of the rule that automatically revokes a Will upon marriage or entering into a civil partnership - often seen as potentially motivating "predatory marriages". This also recognises the social context of cohabitation, thereby not penalising those choosing to not get married.
• A mechanism for looking closely at the testator's intentions. The court will have to be satisfied that what the records show are the clear and genuine testamentary intentions of the deceased person and that these testamentary intentions remained unchanged at the time of the person’s death and were the person’s settled wishes with respect to their estate.
• Closer scrutiny in suspected cases of undue influence, with proposals allowing the courts to infer undue influence based on the circumstances surrounding the creation of a Will. Where undue influence is alleged, and there is evidence to provide ‘reasonable grounds’ a court will be able to infer that undue influence took place, placing the responsibility for the burden of proof on the person seeking to prove the Will to satisfy the court.
• Reducing the minimum age at which a person can make a Will from 18 to 16, the law presumes that children from age 16 have capacity to make other types of decisions therefore the Commission recommends reducing the age limit.
• A large are of the report considers capacity when making a Will and the suggestion is that there is a ‘code of practice on testamentary capacity issued under the Mental Capacity Act 2005 on assessing capacity, and that anyone preparing a Will or assessing capacity in their role as a professional, or for payment, should be required to have regard to it.’

“Everyone needs to have a suitable Will in place, that meets their individual needs and circumstances, but statistics show that a large proportion of our adult population still do not have a Will. Hopefully, these changes will make Will drafting more accessible and encourage more people to get their affairs in order,” added Joanne Jones.

How can we help?

For expert legal advice or with help drafting a Will contact our private client solicitors on 0161 785 3500 or email enquiries@pearsonlegal.co.uk

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.