What do you see as the main challenges to modernising wills?
The Law Commission is seeking views on how best to protect the elderly and vulnerable by reviewing the way in which wills are written. Do you have views which you’d like to share? Now is your chance.
In a public consultation, the Law Commission is seeking public opinion on a whole range of possible areas for reform, to bring the law on creating wills into the 21st century. This includes mental capacity and digitisation.
Public attitudes to mental health and medical science have evolved enormously, particularly in the last decade. However the law relating to whether someone has the mental capacity to make a will dates back to 1870. It is very complicated, often needs expert medical evidence and is unsatisfactory.
Post death challenges to wills is increasing
The number of post death challenges to Wills is increasing and disputes frequently arise over whether a grandparent had testamentary capacity or whether they were unduly influenced by a friend or neighbour, leading to a son or daughter being cut out of their parents’ estate.
When a dispute does arise, it is usually bitterly contested and expensive to resolve. With more people living longer and more starting to suffer from dementia, Wills made in the “twilight years” need particularly careful preparation and execution.
Inconsistency in the law
There is currently an inconsistency between the law relating to mental capacity that is applied to Donors of Lasting Powers of Attorney vs a Will. For LPAs the test for mental capacity is governed by the Mental Capacity Act 2005. However in the case of wills, the law is governed by a case dated from well over 100 years ago.
Why should a different test apply for mental capacity depending on whether the person is alive or dead at the time the issue comes to be discussed? The Law Commission recognises this and is seeking proposals on how the test for capacity to make a Will can be modernised, particularly now that medical science understands more about dementia. It also queries whether there should be statutory guidance for medical professionals when conducting mental capacity assessments.
A Will is a document, written down on paper and signed and witnessed according to very specific rules. It then needs to be stored carefully, possibly for several decades. As with everything else in this digital age, the Law Commission is seeking views on whether electronic Wills should be introduced. What form would they take and, crucially, how would their security be protected? Would there be a central register of electronic wills?
Protect the vulnerable
Whatever proposals are finally brought in (and there is no guarantee that whatever conclusions the Law Commission reaches will ever become law) every possible step must be taken to protect the elderly and vulnerable.
If you want to find out more about this issue, or to contribute to the consultation. please go to www.lawcom.gov.uk/project/wills The public consultation is open until 10 November.