Consultation On The Review Of The Law On Wills And Testamentary Capacity

The Law Commission (England and Wales) published Consultation Paper 231, entitled “Making a will”, on 13 July 2017. The open public consultation will run until 10 November 2017.

The Law Commission announced its intention to review the law of wills and testamentary capacity last year. However, these were probably best summed up by Law Commissioner Professor Nick Hopkins when he said: “Making a will and passing on your possessions after you’ve died should be straight-forward. But the law is unclear, outdated and could even be putting people off altogether. Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law. That’s not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”

The Law Commission now proposes:

• Giving the Court power to recognise a will in cases where the formality rules haven’t been followed but the will-maker has made clear their intentions.
• An overhaul of the rules protecting those making a will from being unduly influenced by another person.
• Applying the test of capacity in the Mental Capacity Act 2005 to the question of whether a person has the capacity to make a will.
• Providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will.
• Giving the Lord Chancellor power to make provision for electronic wills.
• Lowering the age at which people are able to make a will from 18 to 16 years old.

The Law Commission (LC) also asks the public what the main barriers they see to people making a will and to tell it about their own experiences of disputes over wills following the death of a loved one. The paper also asks whether the rule that marriage revokes a will should be retained or abolished.

The Commission also wants to pave the way for the introduction of electronic wills, to better reflect the modern world. In keeping with modern times, the consultation paper also devotes one whole chapter to digital assets. These topics are particularly interesting and will be the subject of a separate bulletin in the near future.

Given that the consultation is open to the general public the LC very usefully produced an easy-read document, helpfully entitled “Will consultation summary (Easy Read)” giving general information about wills and the reasons for the need to change the law. Advisers may find this particularly useful in their discussions with clients about their wills. There is also a very useful document, “Making a will – summary”, which outlines the aims of the project and the key proposals, for those who are not keen to read the entire 284-page document.

The consultation paper, the summary and the rest of the supporting documents can be downloaded from the LC website: It is available to view and respond to here.

Questions can be found on page 246 of the consultation paper.

Responses can be made:

(1) by email, to propertyandtrust@lawcommission.gsi.gov.uk; and

(2) by post, to Damien Bruneau, Law Commission, 1st Floor, Tower, Post Point 1.53, 52 Queen Anne’s Gate, London, SW1H 9AG