The greatest changes to the law of Wills in centuries?
On 13 July 2017 the Law Commission published a consultation on reforming the law of Wills. It says that "the law of wills needs to be modernised to take account of the changes in society, technology, and medical understanding that have taken place since the Victorian era", in recognition of the fact that the main statute (the Wills Act) dates back to 1837 and the test of capacity dates back to a case from 1870. Whether you agree with the proposals or not, the Consultation Paper is well researched, well thought-out and, to my mind, beautifully crafted. Of course, that does not mean the proposals are sensible or appropriate, but certainly thought provoking.
The factors behind the proposed reforms
The factors driving the consultation and proposed reforms include:
- the ageing population
- the greater incidence of dementia
- the evolution of the medical understanding of disorders, diseases and conditions that could affect a person's capacity to make a Will
- the emergence of and increasing reliance upon digital technology
- changing patterns of family life (e.g. cohabiting couples and the increase in second families)
- the fact that more people now have property to make arrangements for after their death.
The proposed reforms
The proposed reforms are extensive and include the following amendments:
- replacing the term 'testator' with 'will-maker'
- replacing the test for testamentary capacity from Banks v Goodfellows to the test for mental capacity in the Mental Capacity Act 2005
- that a code of practice of testamentary capacity should be introduced to provide guidance on when, by whom and how a testator's capacity should be assessed
- a gift in a Will to the cohabitant, parent or sibling of a witness should be void
- a power to dispense with the formalities necessary for a valid Will be introduced
- recognising electronically executed Wills as valid
- the creation of a statutory doctrine of testamentary undue influence
- confining the requirement of knowledge and approval to determining that the testator knows that he/she is making a Will, knows the terms of the Will, and intends those terms to be incorporated and given effect in the Will
- reducing the age of testamentary capacity from 18 to 16
- that marriage entered into where a testator lacks testamentary capacity, and is unlikely to recover that capacity, will not revoke a Will.
Fixing the unbroken or necessary reform?
Interestingly, on reading the paper, there is little direct relationship between the factors which are said to be behind the proposed reforms, and the proposed reforms themselves. More likely, it was simply felt that the laws concerning Wills have been in place for so long that a review must be due. The Law Commission is not wrong on that; much has changed since 1837 and our laws must keep up with the times. There are undeniably areas where reform would assist testators, practitioners and justice as a whole. For example, clarifying and re-aligning the laws of knowledge and approval, testamentary capacity and undue influence, and questioning the future of deathbed gifts (or DMCs) can only be a good thing.
But in a week where Transport for London has scrapped the 'ladies and gentlemen' greeting on Tube announcements in favour of 'hello everyone' to be more gender neutral, one must question whether some of these proposed changes are actually necessary. Replacing the terms 'testator' to 'will-maker' is the most obvious oddity of the proposals, but even the proposal to change the test for capacity (which to most practitioners would agree serves its purpose perfectly well) to the Mental Capacity Act test also seems unnecessary. This is especially so given the High Court's decision to affirm the Banks v Goodfellows case in 2014 over the test in the Mental Capacity Act in the case of Walker v Badmin .
Additionally, there seems to be a lack of appreciation of the impact that the extent of the proposed changes might have on Will disputes. Proposals which, for example, allow disappointed beneficiaries to apply to court to dispense with the formalities necessary for a Will to be valid, and allow electronically executed Wills at a time when will forgery is on the increase, will invariably result in greater ambiguity and, by extension, in more disputes.
That is not to say such proposals are wrong, time will tell – but if only a small number of the proposals are ultimately implemented, their impact could be the greatest development in the law on Wills seen in several centuries.