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Outdated law of wills needs 'overhaul'

Law Commission consults on proposals to ease strict rules

The outdated law of wills needs an overhaul according to the Law Commission.

The independent body say that Victorian laws, out of step with the modern world, are failing to protect the vulnerable – and not allowing others to distribute their possessions after their death.

The Law Commission says that an estimated 40 per cent of adults die intestate each year and it is thought that the laws could be discouraging people from making a will. 

As a result, the Law Commission is consulting on proposals to soften the strict formality rules, a new mental capacity test which takes into account the modern understanding of conditions like dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.

The Commission also wants to pave the way for the introduction of electronic wills, to better reflect the modern world.

In a new consultation paper, the Law Commission proposes:

The paper also asks whether the rule that marriage revokes a will should be retained or abolished.

Law Commissioner Professor Nick Hopkins said:

"Making a will and passing on your possessions after you've died should be straight-forward. But the law is unclear, outdated and could even be putting people off altogether.

"Even when it's obvious what someone wanted, if they haven't followed the strict rules, courts can't act on it. And conditions which affect decision-making – like dementia – aren't properly accounted for in the law.

"That's not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people's last wishes."

Rosemary Milns, trusts, wills and probate lawyer at Hunters Solicitors, commented:

"The law on making a will does need updating, but we need to make sure that we don't throw the baby out with the bathwater.

"Making a will is a serious matter and certain safeguards need to be built in to protect the vulnerable from the unscrupulous. Even under the present law there are too many incidents of undue influence or fraud. Recording how we want our worldly goods to be dealt with has to be done in a secure way so that the scope for unauthorised amendment or indeed accidental deletion is reduced to an absolute minimum."

The open public consultation on wills runs until 10 November 2017. To view it, click here.

13/7/17