It is estimated that approximately 40% of adults die each year without having made a Will, known as dying ‘intestate’.
A consultation document published by the Law Commission earlier in July seeks to reduce these figures. It describes the current law regarding Wills as ‘Victorian’ and called for an ‘overhaul’ of the system to reflect the modern world.
The proposals it sets out are wide-ranging in their scope. They are designed to encourage more people to make a Will and establish a robust process for proving the capacity of the person making the Will for it to be valid. The modernisation of law relating to Wills touches on the use of technology to create Wills, demystifying language used in them, and the emergence of dementia and its impact on capacity tests when determining the legal validity of a Will.
However, the reforms outlined have already met with controversy.
The suggestion that the Lord Chancellor should be given the power to make provision for Wills drawn up by email or text message has raised concerns among some lawyers that digital Wills may be open to fraud or undue influence by a third party. The counter-argument is that widening the methods of producing a Will increases the likelihood of individuals making them.
Whilst broadly welcoming the Law Commission’s consultation, the president of the Law Society, Joe Egan, struck a note of caution on this issue. Mr Egan said: “We will need to examine these issues carefully to help the Law Commission avoid unintended consequences such changes might create.”
Less controversially, the consultation calls for the technical language of Wills to be made more transparent, again with the intention of removing a barrier to creating a Will. This includes terms such as ‘testator’ being replaced by ‘Will maker’.
Another significant element of the consultation is the call to change the guidelines for testamentary capacity. For a Will to be valid, it must, among other things, be shown that the testator understands what they are doing. Currently, this is governed by a Victorian test which does not account for the fluctuation in mental capacity that dementia can cause. The Law Commission proposed that it is replaced by of the test in the Mental Capacity Act 2005. It is intended that, by making this change, not only will vulnerable people be better protected, but the number of claims against the validity of Wills will also be reduced.
The recent rising trend in inheritance disputes can be attributed to a number of factors, including complex family structures, increasing property values and the emergence of a ‘compensation culture.’
The ageing population and the subsequent increase in dementia is another factor when the capacity of the deceased at the time that the Will was made is questioned. However, even if a Will is valid, it may still be contested under the Inheritance (Provision for Family and Dependants) Act 1975, if certain classes of people (for example, children or cohabitees) feel that the financial provision provided by a Will is unreasonable.
I welcome the changes if it means that more people are encouraged to make Wills but, equally, I'm concerned that, if they go too far, many more challenges to the validity of Wills will be made. Ultimately, this could defeat the purpose of the reforms.
The consultation process for the Law Commission document is due to end in November 2017. We wait to see if it will mark the end of Victorian influence over the law relating to Wills and the heralding of a new era where the dying wishes of a person can be encapsulated in a text.