The Law Commission has unveiled a landmark report and a new draft bill proposing sweeping reforms to the laws governing wills in England and Wales.

The legislation which sets out the requirements for a valid will is the Wills Act 1837, which is nearly two centuries old. It is therefore long overdue that the laws are reformed to reflect modern day life.

This article will consider the main recommendations made by the Law Commission and consider how these might work in practice; or, on the flip side, how they might open the gates to more disputes.

1. Loosening the strictness of the requirement of a will to comply with the Wills Act 1837

Under the Wills Act 1837, a will must meet strict formalities to be valid, including being in writing, signed by the testator in the presence of two witnesses who must attest to the signature, and the testator must intend to give effect to the will by signing. If these requirements aren’t met, the will is invalid, and if the testator did not leave an earlier, valid will, the estate will pass under intestacy rules – potentially against the testator’s wishes. This issue arises particularly with homemade wills, where testators may not realise the legal requirements.

The Law Commission recommends allowing courts to make an order to validate wills that don’t strictly comply with the formalities, provided there is clear evidence of the testator’s intentions. Courts would consider contemporaneous proof, such as voice recordings, videos or text messages, and must be satisfied that the testator’s wishes were unchanged at death.

Whilst professional will writers typically keep records of their instructions, homemade wills (where issues with validity are most likely to arise) often lack documented intent. It will be interesting to see how often this power would or could be utilised if enacted.

On a more positive note, the proposed reform would ensure that, in appropriate cases, estates are distributed according to the testator’s true wishes, preventing unintended consequences due to technical invalidity.

2. Age for making a will to be lowered

Currently, you must be 18 or over to make a valid will. If a child under the age of 18 dies, their estate will pass under the rules of intestacy which, in most cases, means their estate will pass to their parents. This can cause problems where a child may be estranged from one parent.

The Law Commission has recommended that the age requirement for a valid will be lowered to 16; and in exceptional cases, that a Court be empowered to authorise a child under the age of 16 to make a will if an application is made.

3. Rectification

A court can currently only ‘rectify’ a will where the drafter mistakenly used the wrong language to describe the testator’s intentions (either by way of a clerical error i.e. an incorrect name or date; or due to a failure to understand the testator’s instructions). A court cannot rectify a will where the drafter deliberately adopted the language used; regardless of whether or not they properly understood the effect of those words. In the latter case, it would be open to any beneficiary who had suffered a loss to bring a negligence claim against the will writer. This may work where the will writer is a professional or has insurance; but it would not assist in cases of homemade wills.

The Law Commission has recommended that the Court’s have a general power to rectify a will in situations where it is satisfied that the will does not give effect to the testator’s intentions because the drafter failed to understand the meaning or effect of the words used.

4. Changing the standard of proof in undue influence cases

A will is invalid if the testator was coerced into making it. The burden is on the person trying to prove that undue influence occurred – they must produce evidence to the Court that the testator was unduly influenced. It is not enough to legitimately persuade someone – there needs to be evidence of coercion. It is often difficult in practice to prove this as such coercion very often happens in private and there will be little contemporaneous evidence of it.

The Law Commission has recommended that instead, if there is evidence to provide reasonable grounds to suspect that undue influence has taken place, the Court will be able to infer that it took place. If the Court determines this, the evidential burden will shift onto the person defending the claim and it will be up to them to prove that the testator was not unduly influenced.

5. Validity of gifts to witnesses

If there is a legacy in a will left to someone who witnesses the will; or to the witness’s spouse or civil partner, that legacy will be invalid. This is aimed at preventing coercion or the possibility of witnesses taking unfair advantage of a testator.

The Law Commission has recommended that this be extended to provide that legacies are also invalid if left to:

a)      A witness’s cohabitant;

b)     A person who signs the will on behalf of the testator; and

c)      The spouse, civil partner or cohabitant of a person who signs the will on behalf of the testator.

Conversely, the Law Commission has also recommended that in certain cases, the court should have the power to ‘save’ a legacy in situations where it would otherwise be invalid by virtue of the above, if it is reasonable and just to do so.

6. Marriage revoking wills

Wills are currently automatically revoked by the marriage of a testator (save in cases where a will is carefully drafted ‘in contemplation of marriage’). A lot of testators are unaware of this consequence of marriage, and the result is that after they have married, their estate will pass under the rules of intestacy and the spouse is likely to receive the lion’s share.

Aside from the fact that this fact is not widely appreciated, this automatic consequence is particularly an issue where there is a ‘predatory marriage’. Even if someone lacks capacity to marry, whilst the marriage is ‘voidable’, it is not ‘void’ so in the eyes of the law the marriage has taken place and any existing wills a testator had will be revoked. If the reason the marriage is voidable is because the testator had lost capacity when they married, they are unlikely to have capacity to execute a new will. In such circumstances, an application would need to be made to the Court of Protection for a statutory will.

The Law Commission has recommending abolishing the rule that marriage will revoke a will and have commented that spouses who would potentially ‘lose out’ should be sufficiently protected by the Inheritance (Provision for Family and Dependants) Act 1975. If this is enacted, it will be interesting to see whether this leads to a rise in Inheritance Act claims.

7. Overhaul of the testamentary capacity test

The current test to determine whether someone has ‘testamentary capacity’ (that is, the capacity required to execute a valid will) is set down by the case of Banks v Goodfellow. This requires the testator to:

• Understand the nature and effect of making a will.
• Know the extent of their property.
• Appreciate the claims of those who might expect to benefit.
• Not suffer from any disorder of the mind that distorts their judgment.

There is, however, another capacity test laid down by the Mental Capacity Act 2005 (“MCA”) which states that a person is presumed to have capacity unless it can be shown that they do not. First, the person must be unable to make decisions for themselves (and the MCA breaks down how this is to be judged); and that inability must be caused by an impairment to the mind or brain, or a disturbance in their functioning.

Whilst a solicitor who is preparing a will for someone will apply the Banks v Goodfellow test to determine testamentary capacity, when the Court of Protection is asked to judge whether someone has capacity to make a will for themselves, they will apply the test under the MCA. If the person fails the MCA test, the Court of Protection will have jurisdiction to make a statutory will for that person.

The Law Commission has recommended that the MCA test should apply for all assessments of testamentary capacity. It has stressed that this test does not appear to be higher or lower than the existing test; just different.

8. Electronic wills

The Law Commission has recommended that provision should be made for electronic wills; and that witnesses may be present remotely.

It is not currently clear whether wills which have been signed electronically comply with the Wills Act 1837, and most practitioners will err on the side of caution and obtain a wet ink signature. However, during the Covid pandemic, there were issues where a testator wanted to make a new will but the restrictions prevented a witness from being in their presence when the will was signed.

In order to protect people from undue influence which may be easier to assert when documents are signed electronically, or fraud, the Law Commission has suggested that a reliable system must be used if electronic wills are introduced which ensures that the testator’s electronic signature is linked to them at the time it is signed; the originally signed document is identified so that it can be distinguished from any copies; and there is protection to ensure that the will can only be altered or destroyed by the testator or person authorised by the testator to alter or destroy the will.

If you have any questions or concerns about anything mentioned above, please contact our Contentious Probate department.