Law Commission Releases Recommendations to Reform and Modernise Wills Law

The Law Commission has published recommendations to reform the law surrounding Wills in England and Wales. The Report is accompanied by a draft Bill for a revised, modern Wills Act to replace the Wills Act 1837. Russell Kaminski looks at the proposed reform and what possible changes may mean for Wills in the UK.

Given the existing act is almost 200 years old (albeit, parts have been amended over the years), the industry has been crying out for reform in recent years (particularly since the monumental shift in the way society operates post-covid (in reference to electronic Wills).

The Report also attempts to balance the need to protect testators (for example by recommending that the existing rule that an individual’s Will is automatically revoked when they marry or enter a civil partnership) with the need to modernise (making provision to enable electronic wills to be legally valid).

It is clear that the Law Commission have been mindful to address an ever growing issue that has increased in recent years, that is “Predatory marriages”. Predatory marriages are those where an individual is befriended by someone whose aim is to marry the vulnerable person. The effect under current law would be for any existing Will that the vulnerable person had in place (perhaps one done many years earlier leaving assets to a deceased spouse and then children) to be revoked and replaced by the intestacy rules (resulting in a large amount going to the new spouse).

An additional recommendation is for the age at which a person can make a Will to be reduced from 18 to 16 years. At present, you must be 18 or older to make a valid Will. This does not align with other laws (whereby the age that it is presumed that people can make decisions is 16).

This proposal would allow, for example, terminally ill children to set out exactly how they would like their estate to be left, potentially cutting out a parent that has otherwise had no involvement in their life who would currently inherit under the intestacy rules simply because the child wasn’t old enough to set out their wishes in a Will.

In practice, I would want to see that the correct protections are put in place to prevent those who fell into this category from being influenced into leaving their assets a certain way as they may have less life experiences and be more willing to trust who purport to have their best interests at heart,  without knowing any better. I would like to see that proper safeguards are in place for those in the 16-18 category (arguably a higher threshold when taking instructions from such clients, or, a requirements that a solicitor must prepare Wills for such individuals (rather than them being able to prepare their own Will without a solicitor).

The recommendations will be welcomed by those in the industry, particularly around the execution of documents and the ability to recognise electronic Wills in the future. We would support any well thought out moves to modernize the sector and this appears to be a step in the right direction.

  • Russell Kaminski

    Partner and Head of Private Client