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Law Commission Reforms – ‘Making a Will’

Abha Pandya | Litigation and Dispute Resolution Team | Brighton

1st November 2017

Whilst it has been lamented by some, there is no denying that there has been a marked shift in the development of law in England and Wales over the past 50 years towards more primary legislation and more significantly, a substantial body of secondary legislation (due in large part to EC/EEC/EU Directives/Regulations of which enough said lest this article be driven into an entirely different direction).

In light of this, it may be a surprise to some to discover that the area of Wills/Inheritance has garnered little reform over the last 180 years.

At long last, the Law Commission has been able to look into this and published its Consultation Paper number 231, entitled “Making a Will”.

The areas this Consultation Paper addresses are as follows:

  • Capacity
  • Supported Will-Making
  • Formalities
  • Electronic Wills
  • Protecting Vulnerable Testators: knowledge and approval and undue influence
  • Children making Wills
  • Interpretation/Rectification/Exemption
  • Revocation
  • Mutual Wills
  • Donationes Mortis Causa

There has long been a difference in respect of the test for capacity in the context of wills (referred to as testamentary capacity) and capacity under the Mental Health legislation. The Law Commission’s consultation asks whether the test for capacity ought to be brought in line with the Mental Capacity Act 2015.

The Law Commission seeks to review what the main barriers are to people making wills and they wish to look at whether any of the formalities can be adjusted to make this more likely e.g. removal of the requirement to have two witnesses and the need for witnesses attest (with the specific attestation at the bottom of a will) a will at all.

They propose to add a further requirement that gifts to witnesses of wills, or to their cohabiting partners/ spouses/ civil partners all be void. This is to bring it in line with a proposal that is likely to go ahead which is a statutory ban on a person who signs on behalf of a testator from benefitting under the will.

A review of the formalities of wills may allow for electronic wills in the future. There is of course concern about fraud in respect of electronic wills and perhaps the best approach (given the pace of reform in this area!)is leave open as many of the formalities issues as necessary so that secondary legislation can be brought in if the technology is sufficiently advanced to authorise electronic Wills.

The test for knowledge and approval has over the years been expanded to include those cases which would rather more properly sit under undue influence, due to the difficulty of pleading and succeeding in an undue influence claim.

There is a difference between the approach as regards undue influence in respect of lifetime gifts as for example where a gift is made by a child to a parent or a beneficiary to a trustee a there is a presumption that there is a relationship of influence. If a party wishes to assert influence in respect of gifts upon death, the burden is on them to prove this. Under the test of knowledge and approval, the burden is on the party seeking to propound the will.

Bringing gift upon death in line with the lifetime gift presumption in line may be step too far but will need to be considered if the ‘approval’ element of the knowledge and approval test is done away with, which looks likely.

Currently the test of knowledge and approval “requires no more than the ability to understand and approve choices that have already been made” (Perrins v Holland [2010] EWCA C iv 840). The cover off those type of cases which may be undue influence cases, the test perhaps needs to be progressed beyond that to also consider that an element of assent also needs to be present.

The Law Commission proposes that the test should be confined to the following:

  1. The testator knows that he or she is making a Will.
  2. Knows the terms of the Will.
  3. Intends those terms to be incorporated and given effect in the Will.

The result could be that the word ‘approval’ is removed from the test entirely, due to the confusion it causes given that it does not seem to add much when considering whether an individual understood what  a will does and what his will ought to consider or give effect to.

The other area of particular interest is in respect of the reforms proposed for the law of ademption.

Currently there exists a lacuna in the law. If an individual leaves their specific property (their main home or a rental property) to particular beneficiaries but this property is sold and no longer available for distribution, unless the will specifically provides otherwise, the proceeds of sale will constitute part of the residuary estate. Thus, if an individual has prepared his/her will themselves, or their will drafter has failed to provide for this situation, the property proceeds could end up going to the incorrect beneficiaries, contrary to the testator’s intention.

An argument may be made for rectification of the Will, however on the current narrow application of that doctrine, strictly speaking such a case would not give rise to grounds for rectification. This will become increasingly common as the population is living longer and losing capacity to make decisions when requiring care. In order to pay for their care, properties need to be sold and often this happens without their knowledge or understanding, and thus the benefit of their property passes to beneficiaries other than those which they intended.

Fundamentally, this comes down to the drafting of the Will. There is no proposal currently to outlaw the drafting of Wills by non-qualified individuals i.e. to make Will writing a regulated activity and in any event there seems to be a movement to less formality, meaning that people will be able to express their wishes about their Estate in documents which are not formal Wills. As this may well continue, the rules of redemption need to be broadened to encompass such scenarios. This is a reform which will likely come into effect.

If you have any comments on and of the proposals, please contact the Law Commission with your views.

Feedback as regards the proposed response will be invaluable given that this is the first proposal of reforms in this area for almost 180 years.

for further information, take a look at;

Author: Abha Pandya, Litigation and Dispute Resolution Team

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