11 Aug 2017
Author: Stephen Breen
Around two thirds of adults in the UK haven’t yet made a Will, leaving their finances to the mercy of intestacy rules. With so few taking the opportunity to put their affairs in order, it is no wonder that the Law Commission is looking for new ways to simplify the process.
What’s in a Will?
Most people know that their Will states who should distribute their property and how their property should be distributed on their death. Without a Will, the rules of intestacy will apply, and these can have some unexpected results.
Aside from splitting up your money, if you are a parent, you should appoint guardians for your children, ensuring that someone is prepared to take care of them should the worst happen. In the absence of an appointed guardian, the Court will step in but the decision may not be the one you would have chosen.
You can also specify in your Will what you would like to happen to your body when you die.
Why make a Will?
Like too many people, you might think you are simply too young to make a Will – perhaps shelving the task for your fifties or sixties. Or perhaps you haven’t visited a solicitor yet because your wealth is insufficient to justify the expense of writing up a legal agenda for its distribution.
Sadly, life doesn’t always go to plan and without this important document in place, your loved ones may miss out on much needed funds. Many families forget that life insurance policies, which can be included in your estate, can provide much-needed funds for loved ones in the event of an unexpected death.
The rules of intestacy can be particularly harsh for unmarried partners, lesbian and gay couples who are not in a civil partnership and those living together where one partner is separated. A Will ensures loved ones who would otherwise miss out on intestacy rules are provided for.
A Will is also a clear expression of your wishes – without which, the Court has no indication of where you would like your money to go. It is possible to claim against someone’s estate (whether or not there is a Will), typically if you were a dependent of that person but not necessarily (see e.g. Ilott (Respondent) v The Blue Cross and others (Appellants)  UKSC 17). If a claim is made, the Court will take into account your wishes – and without a Will, these will be unknown.
What changes have been proposed?
The current law surrounding Wills has been in existence for nearly 200 years. It does not take into account modern technology which most of us use on a daily basis. The formalities for making a Will are therefore dated, and small errors can render a document void.
The Law Commission has proposed that changes are made to the law so that Wills can be made with less formality. It may be, for example, that a text message, email, video message or voicemail will be accepted as evidence of a Deceased person’s testamentary wishes. The Court would need to consider the validity of the evidence and rule ‘on the balance of probabilities’ as to whether the evidence accurately reflected the Deceased’s wishes.
What else has been proposed?
The Law Commission has made a number of suggestions, as follows:
- Allow a court to consider evidence (as above) as to the Deceased’s wishes, in the absence of a formal Will.
- Change the current test of mental capacity to take into account our advanced understanding of conditions such as dementia.
- Provide doctors and other professionals with clear guidance on how to assess whether or not a person has the mental capacity to make a Will.
- Introduce new rules that protect those who are making a Will from undue influence.
- Lower the age for making a Will, from 18 to 16.
The proposals form part of a consultation which closes on the 10th November 2017. You can view the full details here.
Are the proposals risky?
While many of the proposals will be welcome – dropping the age from 18 to 16 for example, or providing clearer guidance on mental capacity – opinion is divided on the prospect of allowing other types of evidence to prove a Deceased person’s wishes. Many within the legal profession believe that this would create uncertainty and could increase disputes. Others believe the system could be more open to fraud, with the possibility that individuals could use others’ email accounts to create fraudulent evidence.
Whilst we may not see text message, email and WhatsApp Wills in the near future, we can expect the outcome of the Law Commission’s consultation will at very least address the archaic rules of the 1837 Wills Act and acknowledge the new forms of digital communication and storage that are prevalent in today’s digital society.