Catrin Griffiths

Will writing Proposals: A change is gonna’ come

On 13th July this year, the Law Commission launched consultation paper 231 outlining its proposals to reform will writing in England and Wales. For those of you who suffer with insomnia, I would strongly recommend reading the 260 or so page document. But for those who do not have the time, the will (no pun intended) or the inclination, fear not! My blog aims to summarise the suggestions made in this revolutionary (??) paper.

According to the consultation paper approximately 40% of the adult population in England and Wales die without a will hence the alleged need for reform. Consequently it follows that 60% of estates are distributed in accordance with what are known as the intestacy rules, which in this day and age are somewhat of an unsuitable vehicle to deal with the distribution of a person’s estate. For example, the intestacy rules make no provision for a deceased person’s cohabitant.  The rules may in addition not be entirely suitable to deal with the estates of those who have remarried and have children from their first marriage, as if the estate under the intestacy rules is worth less than £250,000 this will be inherited by the spouse absolutely and no provision made for the children. Equally the intestacy rules make no provision for charitable giving.

Clearly as a solicitor who specialises in will writing, I can see the need to prepare a will (and yes I would say that wouldn’t I). But why therefore does 60% of the adult population not have a will? Is there a problem with the current system? The Law Commission certainly thinks so and avers that the law could do more to facilitate and encourage people to prepare wills.

The law which governs will writing in England and Wales, namely the Wills Act was made in 1837 when Queen Victoria was sitting on the throne. It therefore begs the question, is it still fit for purpose?  Our society has fundamentally changed since the 19th century but the legislation has not! We now have an ageing population and dementia is more prevalent within our society. Is it therefore time to reform the legislation?

Will writing proposals: The consultation paper itself focuses on three policy objectives, which I will summarise as follows:-

Supporting testamentary freedom

Testamentary freedom is a key principle of our succession laws. In this country you can leave your estate to absolutely anybody, by making a will. However, in nearly all cases, a will, to be valid must be in writing and must be signed by the person making it (the testator, albeit this name is also subject to debate!) in the presence of two witnesses. The witnesses must also sign in the presence of the person making the will and each other. Non compliance with the aforementioned requirements, no matter how big or small renders the will void. The Law Commission considers that courts should have the power to recognise a will as valid even though it does not comply with those requirements. That in itself does not mean that a will would no longer need to be in writing and comply with certain formalities, merely that a court would have the overall power to decide if a will is a will. The Law Commission refers to the power as something of a safety net. But surely having that power will lead to more litigation action in our courts and more contentious probate actions. Furthermore I do not believe that the current requirements serve as a barrier to people wishing to prepare wills. Most solicitors, for example, will provide the witnesses to the will signing, at no inconvenience or extra costs to the client and aim to simplify the process for the testator.

The consultation paper considers whether wills can be made electronically and that the electronic signing of wills could lead to better security, would be more convenient for people and would be cheaper. However, how would we then ensure that the person making a will is protected from fraud and computer hacking? Quite simply I do not believe that electronic signatures in their simplest forms are secure enough as anybody can type a name on a document.

The paper considers if a child should have the opportunity of making a will. Currently 18 is the age of testamentary capacity, but the paper recognises that 16 and 17 year olds are increasingly considered as having the ability to make important decisions, for example decisions regarding medical treatment. Should the law regarding wills therefore be amended to reflect this?

Protecting Testators

The Law Commission recommends the creation of a statutory doctrine of testamentary undue influence. It suggests two different approaches:-

A structured approach

A presumption of undue influence would be raised where there is a relationship of influence between the testator and beneficiary, such as a testator wanting to make a gift to a professional carer and the gift calls for an explanation.

A Discretionary approach

The court can presume undue influence if it were satisfied that it was just to do so in all the circumstances of the case.

The proposals contained in the paper attempt to protect vulnerable people but do nothing in my eyes to prevent undue influence from the testator’s family which remains a concern.

Furthermore, the paper proposes that a person who signs a will on behalf of a testator who is physically unable to sign their will, should not be able to benefit from the will and that a gift in a will to a witness’ cohabitant should be void.

3. Clarity and certainty

The legal test which determines if a testator has capacity to make a will originates from a 19th century case – Banks v Goodfellow. The Law Commission believes that the test should be updated and should be governed by the capacity test contained in the Mental Capacity Act 2005. A testator would therefore be presumed to have capacity to make a will unless it is established that he or she lacks capacity. However is this too simplistic an approach when it comes to the issue of testamentary capacity? I can see the attraction to having one test for mental capacity but it does not follow that one test fits all situations. The current Banks v Goodfellow test is a specific test to assess capacity for a specific issue, namely making a will and has served us well for over a hundred years.

When it comes to revoking a will the paper considers whether the rule that marriage revokes a will should be reformed. But why should it? Is it not right that the act of marriage, of committing yourself in every possible sense to another person should revoke a will made prior to that act? It is also possible for wills to be made in contemplation of marriage which should therefore avoid the pitfall of an unmarried couple who have already settled their testamentary affairs having to make a new will if they decide to get married on the spur of the moment.

What remains a concern for me is that will writing continues to be a non regulated activity, an issue not dealt with in the consultation paper. Improperly drawn up wills can have disastrous consequences, which may lead to a beneficiary losing out on his or her inheritance. If drafted by a non regulated organisation or company what protection does the testator and his or her family have, if mistakes have been made?

I often find that people, rightly or wrongly are too afraid to talk about estate planning and that the concept of one’s death is often the elephant in the room. Making a will does not tempt fate in my experience and can often give the testator, will-maker or whatever newfangled term the Law Commission devises to mean the person making a will, that desired peace of mind that his or her affairs are in order. Therefore, perhaps a newer, more modern wills act is required, as well as a more modern approach to the issue of estate planning and being able to talk openly about death. To quote Sam Cooke’s lyrics – “It’s been a long time coming, but I know a change gonna come, oh yes it will.”

(On that happy note, for those of you who wish to have your say on the law surrounding wills, responses to the paper should be submitted before 10th November 2017.)

Written by: Catrin Griffths

Catrin is an Associate at Wendy Hopkins Family Law Practice

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Published 25/07/19