STEP, the professional body for trust and estate practitioners, has announced its initial response to the publication by the Will Commission of its Report: Modernising Wills Law, and draft Bill for a modern Wills Act – replacing the Wills Act 1837 that has remained largely unchanged since Victorian times.
The key recommendations are significant and include:
- The introduction of electronic wills subject to additional formality requirements.
- Marriage and civil partnerships will no longer revoke a will in a move to help prevent predatory marriage.
- Reducing the age of testamentary capacity and the age to make a will to 16.
- Increasing the powers of the court around undue influence, the validity of a will, and the voiding of gifts.
Emily Deane TEP, Technical Counsel and Head of Government Affairs at STEP, the professional body for trust and estate practitioners, said: ‘Reform of the Wills Act is long overdue and is welcomed. It brings with it far-reaching implications particularly concerning the proposed abolition of the law that revokes a person’s will when they marry or enter a civil partnership. People need to be made aware ahead of any changes to the law, the impact, and the importance of having a will and keeping it updated. This will ensure that any changes do not lead to an increase in inheritance disputes and litigation, further strain on the legal system, confusion and distress for bereaved families.’
Electronic wills
We welcome the proposed introduction of electronic wills as it will help to make wills much more accessible and encourage more people to make a will. In the UK, only 49% of adults have made a will[1].
However, this is one of the most complicated aspects of the reform, and it’s vital that people understand what an electronic will means. We need robust safeguards to ensure sensitive data is stored securely, and that the public, especially the vulnerable, are protected. It is good to see that the process for making a paper will is unaffected, and that electronic wills will only be valid if they are registered and stored on a government-authorised central storage system.
The additional formality requirements put forward are sensible. The Law Commission will also need to ensure that the software and provisions are robust against fraud and undue influence. Further consultation is needed to ensure that any new system, its design, functionality and security meets the needs of the public and practitioners. We will be monitoring developments carefully.
Age to make a valid will lowered to 16
In England and Wales, the age of testamentary capacity and age to make a will reduces to 16. This is a positive change which allows 16- and 17-year olds the freedom to choose who to leave their assets to. The court will also have the power to approve wills for children younger than 16 if deemed appropriate.
We need a strong awareness campaign and public education programme to ensure that people understand the importance of wills, and are provided with the right support and professional guidance to make the most informed decisions.
Marriage and civil partnerships no longer revoke a will: helping to protect vulnerable people from predatory marriage
The proposed historic change to marriage or civil partnership no longer revoking a will is a significant success for campaigners such as Daphne Franks who have done so much to help prevent predatory marriage. It means an elderly or vulnerable person is induced into a marriage despite lacking the capacity to make that decision.
As part of the will reform consultation process, STEP proposed enhancements to capacity assessments and better training for registrars to help recognise and help prevent predatory marriage.
The legal profession is split as to whether marriage should revoke a will[2], and this change could lead to increased inheritance disputes and litigation. The potential risks and unintended consequences need to be addressed and any changes need to be supported with a strong awareness campaign by the government.
Ahead of any change to the law, the focus on predatory marriage should act as a reminder for people to watch out for the signs of financial abuse, including predatory marriage, which often doesn’t come to light until after the victim’s death. It also highlights the critical importance of updating wills especially after significant life changes, such as marriage, and when children and step-children are involved.
Undue influence
Undue influence in will-making is a significant concern, especially as it is difficult to prove due to its often secretive and hidden nature. With litigation on the grounds of undue influence on the increase, STEP supports the proposed recommendations to increase the powers of the court to identify and clamp down on this abusive behaviour, including the right to approve or void gifts in wills to cohabiting partners of will witnesses. The court already has this power for the spouse of witnesses, but due to the increase in cohabitation, it is necessary to extend it.
The recommendations include shifting the burden of proof to the person or people who will benefit where there are suspicious circumstances regarding the making or changing of a will. STEP also welcomes the balance placed to better protect vulnerable people from coercion and undue influence, while respecting the rights of the individual to make a will.
Testamentary capacity
This recommendation will unify two tests for testamentary capacity: Banks v Goodfellow, an 1870 ruling still used for assessing capacity, and the Mental Capacity Act 2005. As a result, the Mental Capacity Act will be the only test of a person’s mental capacity to make a will, which will bring about greater clarity to the law. It is great to see that Banks v Goodfellow will not be overlooked and will be incorporated into the Mental Capacity Act 2005 Code of Practice.
Other recommendations put forward include increasing the powers of the court in relation to the validity of a will. This is a sensible change that will allow the courts to determine that a will is valid even if some of the formality requirements have been overlooked such as incorrect signing or witnessing of wills.
The Law Commission’s Report and draft Bill will now be reviewed and considered by the government. STEP will be engaged in this process and calling for a public information campaign to help families understand what these changes will mean and reduce the financial cost and distress of disputed wills.
