So the consultation by the Law Commission on Wills is progressing, with the view that the final report may be delivered early 2019.
The impact on Wills and the sector could be substantial, particularly in regards to digitisation of Wills and the modern social and capacity implications of our current lifestyle.
The initial consultation period closed last November. This stemmed from a public consultation in 2013- 2014 which resulted in it being clear that the general view was the current law on Wills was not working, with two min areas of focus: testamentary capacity and formalities.
The current England and Wales law on Wills is derived from the Wills Act 1837, so it could be argued that we are indeed due are review. Changes in society, technology, health, medical progress and wealth has changed dramatically, and so modernisation of the law on Wills is perhaps overdue.
Purported changes relevant to the review of Wills includes:
- The ageing population and increase in dementia and the impact of this
- The advancement in medical understanding and treatment of disease and illness that can affect capacity when making a Will.
- The fast emergence of technology and digital activity and the increased reliance of this in daily lives
- Changing family lifestyles and increase in cohabiting, multigenerational households and second families
- The increase in personal assets owned by a person, including property and wealth
Based on this then the Law Commission consulted on proposals to consider:
- Courts ability to remove formalities for a Will where it’s clear what the deceased wanted – how this can be clearly determined is yet to be seen
- Changes to how capacity is tested, to consider modern understanding of dementia, and the different types of dementia
- Provide concise guidance for medical professionals regarding mental capacity assessments and ability to make a Will
- New rules to protect against undue influence when making a Will
- To lower the age to 16 to be able to make a Will.
- There is also the intention to allow for the introduction of electronic Wills as part of the progressive digital world.
The consultation is now at Policy Development stage, the final stage in the process before the report will be published.
The outcome and the implications for the sector and for the public will be interesting to see. Theoretically the making of a Will should have more transparency and support behind it regarding capacity, the process could also become quicker with the introduction of electronic Wills, and may be more encompassing of differing family households. But we will have to wait and see, we only know for sure that there will be changes, and how far-reaching they will be remains to be seen.