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

We all know the benefits of having a valid will when we die. Don’t we? And yet nearly 60% of UK adults don’t have a will . If you don’t have a will then your estate (possessions) falls under the laws of intestacy – and that means they may not be divided up the way you want them to be.

Last year the Law Commission (England and Wales) started researching the law relating to wills and testamentary capacity. The current law is The Wills Act 1837. Yes – 1837. I think you will agree that after 180 years it is time for a review.

You need to be 18 to make a valid will (in England and Wales), and there is a proposal to drop that to 16. Currently the age for making a will in Scotland is just 12 and, when you consider that you can write a new will at any time, is there any downside to lowering the age to 16?

Due to advances in medical science people are living longer and some of us will lose mental capacity several years before we die (check out the Mental Capacity Act 2005) Once that happens, it could be too late to make a will or to change an existing one. Conditions which affect decision making, like dementia, aren’t properly accounted for in law. Having the capacity to write a will is a test of understanding, not of memory, and therefore starting to lose your memory should not prevent an individual from being able to express their wishes in a will.

The Law Commission is also considering an overhaul of the rules protecting those making a will from being unduly influenced by someone else. No-one should be bullied into leaving their possessions to someone they don’t want to.

Another area for consideration is that of “electronic” wills. How many of you use smartphones or tablets on a daily basis? Should we be able to create our will using these? Could wills be created by voicemail? Watch this space.

Finally, it would also help if the Courts were given power to recognise a will where basic errors have occurred while writing the will, which could mean the will is invalid, despite the writer’s intentions being clear.

The public consultation paper was published on 13 July 2017 and runs until 10 November 2017. You have the opportunity to respond if you wish.


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