Modernising the law of Wills

The Law Commission last week produced its final report on its consultation on the law of wills – the first comprehensive review of the law in this area in nearly 200 years. The project has been an ambitious and lengthy undertaking and proposes to modernise the law in a significant way. The accompanying Bill, if enacted, would aim to do following:

‘Restate, with modifications, the Wills Act 1837 and other enactments relating to wills; to make provision about testamentary capacity; to make provision about the formal validity requirements for wills in electronic form; to confer powers on the court to deem the formal validity requirements to be met in relation to a will and to save dispositions of property by a will that would otherwise be invalid; to make provision about testamentary undue influence; to make provision about the interpretation of wills; to codify some of the common law rules relating to wills; to make other provision relating to wills; and for connected purposes.’

Below is a whistle-stop tour of the proposed changes and what the new Bill has in store…

 

Formality requirements

As we know too well, a will that does not comply with the formality requirements in the Wills Act 1837, is not a valid will. The new provisions grant the court a statutory power to make an order to provide that a document can be treated as a formally valid will in order to govern what happens to the deceased’s property (the “dispensing power”). In essence, the court will be able to give effect to a formally invalid will if the court is satisfied there is sufficient evidence to show the clear and genuine testamentary intentions of the deceased at the time of their death. The court will be permitted to examine any record made by the testator expressing those intentions, including electric documents, and video and sound files (more on this below). The court will also have to be satisfied that these testamentary intentions remained unchanged at the time of the person’s death. The court’s ability to dispense with the statutory formalities is likely to introduce a level of uncertainty whilst the courts work out the scope and application of this new power.

 

Electronic wills

It is not entirely clear whether an electronic will is capable of being valid under the formality requirements in the 1837 Act. The use of electronic documents and the performance of electronic execution are increasingly accepted in several contexts, which necessarily has led to the question of whether electronic wills should now also be accepted. The consultation has scrutinised the security risks posed by electronic wills (fraud and undue influence), and the Bill proposes to mitigate those risks by requiring that an additional formality is met in order for electronic wills to be valid: that there be a reliable system in place to ensure the security of the will. The ‘reliable system’ used would have to be capable of linking any signature with the person whose signature it is; identifying the will so it can be distinguished from any copies; and protecting the will against alteration or destruction other than by the testator or someone authorised or directed by the testator.

 

Age for making a will lowered from 18 to 16

Under the law currently, when a child dies, any property they own is distributed in accordance with the intestacy rules, which in most cases will result in the child’s estate going to both of their parents. This can lead to injustice in exceptional cases, such as where it is contrary to the child’s wishes for one of their parents to inherit, or where the child is unable to decide what should happen to their body after they die. This change seeks to bring a welcome level of consistency across the board, by codifying principles that arise under the Mental Capacity Act 2005 which assumes that people over the age of 16 have capacity, unless it is established that they do not; and in case law (the case of Re JS (A Child) [2017] springs to mind in particular).

 

Rectification

The law on the rectification of wills is currently governed by section 20 of the Administration of Justice Act 1982. This provision allows the court to correct a will where it fails to carry out the testator’s intentions due to a clerical error, or the failure of the person who drafted the will to understand the testator’s instructions. The court cannot rectify a will where the testator or drafter intentionally but mistakenly used the wrong words. Effectively, the Bill proposes to slightly widen the scope of rectification, so that the court is able to rectify a will where it is satisfied that the will does not give effect to the testator’s intentions because the drafter failed to understand the meaning or the direct effect of the language used in the will.

 

Revocation

One of the less known features of wills made under the 1837 Act, is that it is automatically revoked if the person making it gets married or forms a civil partnership. There are several undesirable consequences to this automatic revocation. One of those situations is when a person marries or enters a civil partnership at a stage in their life when they lack the capacity to make a new will. The person risks dying intestate unless a statutory will is made for the testator by the Court of Protection. People are living for longer and second and later-in-life marriages are very common, and in these instances, those marriages may not intend to change a person’s plans for their adult children or grandchildren to be the primary beneficiaries of their estate. The new proposals abolish the rule that marriage or civil partnership revokes a will. Spouses and civil partners enjoy a relatively high level of protection already, given their right to make a claim for reasonable financial provision from the estate, under the Inheritance (Provision for Family and Dependants) Act 1975; and so this proposal would look to provide a level of protection to other categories of family members and dependants who would not necessarily meet the criteria under the 1975 Act.

 

Undue influence

Testators, and vulnerable testators in particular, are protected currently under the law of undue influence. However, if someone wants to challenge a will on the basis that the testator has been unduly influenced, the burden rests with them to prove it, which often presents an insurmountable hurdle especially in circumstances where the undue influence is happening behind closed doors. In the recent case of Naidoo v Barton [2023] EWHC 500 (Ch) the court decided that where undue influence is claimed in cases involving mutual wills, it is appropriate to apply a different test: the test for undue influence regarding lifetime transactions which presumes undue influence where certain factors are met. The Law Commission has identified the need for clarity and consistency; and recognised the injustice presented by the evidential hurdles. The proposal therefore proffers a two-stage approach so that it would be possible for the courts to infer that a will was brought about by undue influence, where there is evidence which provides reasonable grounds to suspect it. In determining whether there are reasonable grounds, the court must consider, among other factors, any relationship of influence between the person alleged to have exerted undue influence and the testator; that person’s conduct in relation to the making of the will; and the circumstances in which the will was made. If the court does infer that undue influence occurred, the evidential burden will shift to the person seeking to prove the will to satisfy the court, on the balance of probabilities, that undue influence did not take place, and that the will did in fact reflect the testator’s own freely formed intentions.

 

Signatures and witnesses

The law currently permits a person to sign a will on behalf of the testator, in the testator’s presence, where that person has been authorised to do so by the testator. Under the new proposals it would be possible for those signing, either on behalf of the testator, or as a witness, to meet the requirement of being ‘present’ by their remote presence, such as by video call. More significant perhaps, is the proposal to extend the rule invalidating gifts under a will in order to capture a wider group of people. The law currently invalidates a gift in a will to a witness or to the witness’s spouse or civil partner; but does not invalid a gift to someone signing on behalf of the testator. Furthermore, the current law fails to recognise that the risk of abuse from a witness’s cohabitant appears to be the same as that from the witness’s spouse. Therefore, extending the rule to witnesses’ cohabitants and those signing on behalf of a testator seeks to mitigate the overall risk of abuse, and to ensure witnesses have no interests under the will, so they remain independent and can be relied upon to provide evidence about whether the will was validly made. However, statutory relief is also provided for under the new rules, for gifts to be saved to any of the above categories of people, if the court considers it just and reasonable to do so, having regard to the conduct of that person relating to executing the will or proving the will’s validity.

 

Testamentary capacity

The test for whether a person has the mental capacity necessary to make a will emanates from the case of Banks v Goodfellow (1870). While there is currently no presumption in the Wills Act 1837 that a person has capacity, case law has established a situation similar to a statutory presumption. The Mental Capacity Act 2005 provides a different test for assessing whether a person has the mental capacity to make a decision in various areas of their life, covering a broad range of financial and welfare decisions. The MCA test also applies when the Court of Protection is determining whether a person lacks capacity to make a will for themselves; if they lack capacity, the Court of Protection can order a statutory will be made for them. The MCA creates a presumption that a person has capacity unless it is shown that they do not. Where a will is valid (in terms of the formalities having been complied with), and where it appears rational, the burden falls on a person trying to challenge a will to provide enough evidence to cast doubt on the testator’s capacity. The case of Baker & Anor v Hewston [2023] EWHC 1145 (Ch) reignited the longstanding debate on whether the test applicable for wills, ought to be replaced by the MCA test. However, the question was put to rest in Leonard v Leonard [2024] EWHC 321 (Ch).  The Law Commission’s proposals recommend that the MCA test applies to all assessments of testamentary capacity and should replace Banks v Goodfellow.  The Law Commission has already recognised that in some circumstances, the MCA test may require more of testators, i.e. testators who had capacity to make a will under Banks v Goodfellow may not be found to have capacity under the MCA, for example, if they cannot understand the collateral consequences of their will. In other respects, the MCA test could require less of testators, resulting in testators who would not have capacity under Banks v Goodfellow being able to make a will under the MCA test, for example, if their mental disability or illness changes their feelings and values. The Law Commission’s analysis is that adopting the MCA test does not appear to mean that the standard for capacity will be higher or lower – just slightly different.

 

The Government’s response to the Bill is expected within the year. Watch this space for more news on this topic…

 

Analysis and review produced by Rosalind Young, of Farrar’s Building who has an active interest in all aspects of probate work. Ros accepts instructions on a range of disputes within Chambers core areas of expertise.  For further information, please contact her Clerking Team.

 

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