The Law Commission has launched a consultation into modernising the law relating to wills, and about time too.
The main legislation relating to wills has been on the statute books for 180 years and the leading case to test whether someone has capacity to make a will dates from 1870. The advances in society, science and medicine since that time are staggering, but the law has not kept up.
The areas which will be reviewed mark fundamental changes in the ways people can leave their assets when they die.
It is not uncommon for a will to become outdated due to changes in family circumstances or changes in the law. Unless you review your will regularly it may not do what you want it to and the results can be disastrous for those left behind. If the Courts are given greater flexibility to honour the deceased’s wishes, more estates might pass to the family, friends or charities the deceased wanted to benefit.
A more flexible approach to the ability to make a will would help people in a vulnerable position to achieve the testamentary wishes they want. When the 1870 case of Banks v Goodfellow was decided, the Court reviewed the medical and legal understanding of mental capacity in Victorian Britain. The Court's decision has stood the test of time, but now we have a far better appreciation of mental health and modern laws acknowledge that a person doesn’t just ‘loose capacity’; their ability to make decisions may change, sometimes from day to day.
Changes such as lowering the age to make a will to 16, and the prospect of digital wills show that the law might be moving to catch up with modern society and real world problems such as digital bank accounts and online assets.
It will be interesting to see the results of this consultation and, if there are changes, whether those laws can stand the test of time for the best part of 200 years.
The Law Commission is consulting on proposals, amongst others, to: enabling the court to dispense with the formalities for a will where it’s clear what the deceased wanted changing the test for capacity to make a will to take into account the modern understanding of conditions like dementia provide statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will. new rules protecting those making a will from being unduly influenced by another person lower the age for that a will can be made from 18 to 16.