Consultation to modernise will making

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On 13th July 2017, the Law Commission launched a consultation with a view to updating the Will writing process in line with our modern and technology focused lives.

The Commission identified that current laws fail to protect the vulnerable, not least because the established test for testamentary capacity is currently derived from the 19th century case of Banks v Goodfellow.

In its consultation document, the Commission puts forward a large number of proposals, including the suggestion that the Mental Capacity Act 2005 should be the basis upon which to determine whether or not somebody is able to make a Will, with specific elements of the statutory test be outlined in and supported by a Code of Practice. It is of course essential to ensure that a person’s testamentary wishes are reflected in their Will and a clear and concise test for capacity may also minimise the potential for post-death disputes between actual and disappointed beneficiaries.

The Commission also recognises future scope for electronic Wills, as well as those set out in text messages, emails or on video. There must be, of course, an enormous amount of consideration to such proposals given the risk of undue influence, duress and fraud. It is also proposed that the minimum Will-writing age is reduced from 18 to 16.

The consultation paper also advances the idea that a Court may potentially be able to identify a Will-maker’s clear intentions even if the strict statutory Will writing rules have not been followed. This is a huge departure from established law and, like many of the other proposals, is being met with mixed feelings from the sector. Whilst it is clear that Will writing needs to be brought up to date, the risks associated with electronic Wills are obvious to all. The public consultation is open until 10th November 2017.

It is worth knowing that 40% of people die without having made a Will.


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