Written by Angharad Lynn, Partner in the Private Client team at law firm Russell Cooke.
An English Will in 2025 differs only marginally from an English Will created back at the time of the 1837 Wills Act, which introduced many of the rules we follow today. But the new report from the Law Commission, published on 16 May is designed to bring English Wills into the 21st century, ensuring they reflect the realities of people’s lives.
The draft bill, produced alongside the report, provides for the introduction of electronic wills; to replace the 1870 test for testamentary capacity with the one outlined in the 2005 Mental Capacity Act; and to ensure that marriage no longer revokes a will.
Many jurisdictions now recognise electronic wills. For example, in the US, 14 states now recognise them, as well as British Columbia in Canada, and Victoria in Canada.
There are of course clear risks. Electronic documents are more likely to be hacked, corrupted and to be subject to fraud. It may be easier, for example, to corrupt an electronically stored document and amend its provisions, than to forge a paper will. Digital documents are more easily deleted accidentally, and if remote witnessing becomes a reality, then undue influence could be of increasing concern.
The Law Commission appears to be aware of the potential risks and has indicated that electronic wills will only be valid if they are registered and stored on a government-authorised central storage system, which should mitigate against some of the risks.
The formality requirements will be similar to those for paper wills in that a will must be written, signed by the testator, and witnessed by two people present at the same time. However, additional safeguards are suggested to ensure that the specific issues that could be of concern with electronic wills are not overlooked. These include:
1) that the testator (and the witnesses) are linked to their signatures at the time of signing;
2) that the original or authentic will is identifiable from copies of it; and
3) that the original or authentic will is protected from unauthorised alteration or destruction.
However, the report goes on to say that the Commission does not recommend the means or technology necessary to establish these criteria. This could mean that, at the lower end of the market, where clients are particularly price sensitive, enough attention may not be given to ensuring the security of wills.
The report also advises giving the courts a “dispensing power” to recognise documents that are not formal wills but that show a testator’s intentions, including videos, electronic documents and recordings. The fact that the court would need to approve these “wills” should act as a check and balance, however there are clearly risks associated with proving the authenticity of such documents.
Were these changes to become law a shift would be required in how practitioners prepared wills, with more emphasis on the security risks and on ensuring registration.
Whether an individual has sufficient mental capacity to make a will is another key area of the report, and one which is becoming increasingly important, in an ageing society. While individuals may live longer than ever before, so they are also often increasingly infirm in their older years, meaning mental capacity is a more important issue than ever.
At present, the test used when assessing testamentary capacity is that laid out in the case of Banks v Goodfellow (1870), which considers whether someone understands the nature and effects of a will, the extent of their property, and the potential claims of others. The Law Commission recommends moving to the more modern and widely applied test found in the Mental Capacity Act 2005, which is already used for making statutory wills. The MCA test involves a two-stage test, firstly assessing whether a person has a mental impairment and secondly looking at the decision making process itself. For those with ageing family members, or who may face capacity-related challenges themselves in the future, this change could provide clearer and more consistent guidance.
However, for practitioners, changing to assessing capacity on the basis of the Mental Capacity Act, will take some getting used to, and applying a new standard would require education, a period of adjustment and the development of new case law. There may also be increased risk of disputes if assessments of capacity become inconsistent. These may be an increased need for capacity tests to manage risk, certainly during the transition period.
Other ways in which the proposals are attempting to bring the law into line with people’s lives is to propose getting rid of the rule that marriage revokes a will, unless that marriage is expressly anticipated in the will. Whilst this rule may have made sense in the days when cohabitation was rare in today’s society it is not unusual for a couple to live together, make wills and then marry without realising that they have revoked their wills. Ignorance of this law leads to unexpected intestacies, and there is also a fear that this rule can be exploited by predatory marriages. The report therefore proposes the abolition of this rule.
In a similar vein it is currently the case that the spouse of someone who benefits under a will cannot act as a witness. If they do the gift will be void. It is proposed that the same rule should be extended to apply to cohabitants. This is likely to be much more difficult to police, as the date on which someone became a cohabitant, and whether they were a cohabitant or not, are not set in stone in the way a marriage is.
The Commission also examined whether minors should be allowed to make wills. Under current law, only those aged 18 and over can do so, unless they are serving in the armed forces. The proposal is to reduce that to 16, citing the example of other jurisdictions which allow this. In practice this will affect only very wealthy families
The last few years have seen a number of changes to the way private client law practice has evolved to reflect 21st century life. For example, the need to formally swear an oath when making a probate application has been dispensed with and probate can now be applied for online. Similarly lasting powers of attorney can be applied for online. On the whole, if implemented, the proposals should be useful in bringing the making of wills in line with other developments in private client law and making them fit for purpose in the 21st century.
