Reform of the Law of Wills – where are we now?
Earlier in July this year, the Law Commission produced a consultation paper that proposed several reforms regarding the law around Wills. We discussed the proposed changes and our views on them in our article 'The greatest changes to the law of Wills in centuries', published on 17 July 2017.
Since then, the paper has sparked strong reactions from a number of professional bodies, with over 80 formal responses to the paper thought to have been received by the Law Commission. The responses indicate that the most controversial reform proposed is for the courts to be given a wide power to recognise a Will, even where the traditional formality requirements have not been followed. Having identified the need to update the law in line with technological advances of the modern age, the Law Commission proposed allowing courts to recognise "electronic", "audio" or "audio-visual" Wills. This would include, for example, an electronic message or video recording sent by the Will maker.
The Law Society appears to have thoroughly backed the Law Commission's above proposals. The president of the Law Society, Mr Joe Egan, has confirmed that given that 40% of people are still dying without making a Will, this must mean that the process needs to be made more "accessible" to the public. He agreed that a court should still be able to respect a person's final wishes, even if they have not done a formal Will. Understandably, the above is on the basis that "appropriate safeguards against fraud" are put into place.
The Institute of Legacy Management (ILM) has however taken the view that the Law Commission's paper does not go far enough to address the issue of what impact technology is already having on law of Will making. Chief Executive, Chris Millward, has highlighted that although the consultation proposes the ability to recognise electronic Wills in the future, it does not give a timeline for when this would happen, or details as to how any such public consultation related to it should be conducted. The paper rather vaguely says that the reform is needed "once technical obstacles are overcome," but gives little more guidance. He confirmed that some ILM members are already dealing with cases where Wills have been made online, and that this figure is only likely to increase. If this issue is therefore not dealt with now, he fears that they will see more cases of badly drawn up Wills online, resulting in charities missing out on legacies. He considers that "tighter regulation" and "standardisation" of Will writing platforms are essential to ensure that vulnerable people are protected and safeguards are in place.
The Law Society and ILM both make very valid points in their respective comments. A modernisation of the law in this area is well overdue. However, the introduction of electronic Wills necessitates the complex task of deciding on how electronic Wills will be safeguarded to protect against fraud. The presence of cyber-crime in today's society is a fast growing problem, which is already very difficult to police.
So, what happens next?
The consultation closed on 10 November 2017. The Law Commission has indicated that it will now break into several "small working groups," which will focus on various draft legislation.
It is hoped that the formal report of the Law Commission will be published by the end of 2018.