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Consultation on the review of the law on wills and testamentary capacity

Last year the Law Commission (England and Wales) started researching the law relating to wills and testamentary capacity. So what law do we currently use? The Wills Act 1837. Perhaps after 180 years it is time for a review.

You need to be 18 to make a valid will in England and Wales, and the proposal is to drop that to 16. However, in Scotland the age is just 12 and, on the basis that you can write a new will at any time, is there a downside to lowering the age to 16 in England and Wales?

Another area causing concern is the definition of testamentary capacity.
We have an ageing population and there is the likelihood that someone will lose mental capacity (Mental Capacity Act 2005). Once that happens will they not be able to make a new will or to change an existing will? Conditions which affect decision making, like dementia, aren’t properly accounted for in law. Testamentary capacity is a test of understanding, not of memory, and therefore some mild cognitive impairment should not prevent an individual from being able to express their wishes in a will. (Simon v Byford 2014)

The Law Commission is also considering an overhaul of the rules protecting those making a will from being unduly influenced by someone else.

With continuing advances in technology another area for consideration is that of electronic wills. Should someone be able to create an electronic will, and if so, what is the equivalent of a wet signature and witnesses? How will we know that the testator was the individual who created and “signed” that will? Could wills be created by voicemail? This may allow an individual to make last minute changes to their will before they die if they have access to a smartphone or tablet rather than needing pen, paper and witnesses.

Finally, it would also help if the Courts were given power to recognise a will where the formal requirements haven’t been met, or where basic errors have led to the will being invalid, despite the testator’s intentions being clear.

The public consultation paper was published on 13 July 2017 and runs until 10 November 2017. It can be found here and we all have the opportunity to respond.


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