Only 180 years after the Wills Act was introduced, there is a suggestion that the law around making Wills may need updating to reflect “changes in society, technology and medical understanding”. When one considers that Queen Victoria had just succeeded to the throne and that neither the car nor the computer had been invented, the statute has lasted rather well. However, recent developments in medicine and technology present new challenges not envisioned in Victorian times. As a member of ACTAPS, I had the pleasure of being invited to a Law Commission meeting on their proposals for bringing the law of Wills into the twenty-first century.
There had been quite a lot of sensationalist reporting on their proposals which they were keen to correct.
In 2005, the Mental Capacity Act came into force and has been the starting point when considering whether a person has capacity for most things. However, in deciding whether someone has capacity to give instructions for a Will, lawyers have remained wedded to a test devised in the Banks v Goodfellow 1870 case. The Law Commission thought it was about time that the law was updated so that the Mental Capacity Act would be adopted as the test, but they would still have a Code of Practice which referred to the elements of the Banks v Goodfellow decision to appease those lawyers who enjoy a bit of tradition.
The Golden Rule
Judges have developed a test, described as The Golden Rule, which suggests that, if a Will writer has an elderly Testator with question marks over their capacity to give instructions, a report should be obtained from a GP. In practice, that test causes all sorts of problems and the Law Commission thinks that specific guidance should be given as to when it may be suitable to obtain a report from a practitioner, how and by whom. They would like various red flags to be identified, not necessarily just age related. It would also just be a rule of best practice rather than a statutory duty of care.
Much of the press interest was focussed on the apparent suggestion that Wills would not have to be written down and not witnessed. The Law Commission was quick to stamp on that suggestion and said there would be no real change in the law as they proposed it. A person writing their Will would still need a written document signed by them and, at the same time, witnessed by two witnesses. The Law Commission also said that the Court could be given a dispensing power to recognise a Will even if it did not comply with the formalities, but only where the Court could be certain that it represented the deceased’s final wishes. They gave, as an example, a situation where someone is in hospital in the process of executing a Will when one of the witnesses, e.g. a nurse, is called away and later returns to sign the Will. Currently, that would not be a valid Will but, under their proposals, it might be if the Judge decided that the document was meant to represent the deceased’s final wishes. Interestingly, in Australia, the Court has just accepted an unsent text message on a dead man’s mobile phone as an official Will. This is perhaps an extreme example of the sort of thing the Law Commission is considering might be allowed here.
The Law Commission has thought about this but, for now, remains wedded to parchment and a quill pen. They appreciate that some futurologists would suggest that, in the twenty-first century, there are more secure methods than a document signed by an individual, but they acknowledge that the law moves slowly.
Protecting the Vulnerable
At present, the rules on undue influence and what is known as knowledge and approval do not work particularly well. It is very difficult to show undue influence and often, when challenging a Will, claimants argue that a Testator did not know and approve of it when, in fact, what they are really arguing is that there was undue influence. In most areas of law there is a presumption of undue influence but, when it comes to allegations that a Testator has been unduly influenced, there is no such presumption. Currently, a claimant must show actual undue influence which can prove to be very difficult, particularly since one of the key witnesses, the Testator, is dead by the time you try to prove the case. The Law Commission is considering expanding the doctrine of undue influence and creating a bespoke doctrine of testamentary undue influence, in the hope that it will catch the right people and stop lawyers and Judges tying themselves in knots trying to apply the wrong test when seeking to challenge a suspicious Will.
The Law Commission is also looking at things like revocation by marriage. Currently, if one has a Will and gets married, the marriage revokes the Will. Not everyone is aware of this and the Commission thinks it would be sensible to dispose of the rule. They are also proposing rule changes connected with the doctrine of ademption but that is just too exciting a concept to do justice to in this article.
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