Making of Wills to be brought in to 21st Century
You can now use your smartphone to pay for meals in restaurants, get on international flights and even find your soulmate. So why not use it to record your wishes and instructions about what will happen to your estate when you die? This is one of the innovations being considered by the Law Commission, which is consulting on proposals to bring Will-making into the 21st century.
The law covering Wills is mainly set out in the Wills Act of 1837. Enacted the same year that Queen Victoria came to the throne, it sets out the requirements about making valid Wills that are still followed today. This includes the fact that a Will has to be in writing and witnessed by two independent people who are not beneficiaries themselves, and that the person making a Will has to be 18 or over. A later (but still pretty ancient) case of 1870 also lays out the main principles that we still follow to determine whether someone had the capacity to make a valid Will. 180 years on, these principles have now been brought in to question.
The Law Commission has focused on the fact that 40% of people in England and Wales die without leaving a valid Will. If that happens, the rules of intestacy govern how that person's estate will be distributed and will not take into account any evidence of what that person may have wished. In particular, the rules of intestacy will not provide for an unmarried partner or leaving gifts to friends or charities. The Law Commission believes that the current law governing the making of Wills is outdated and not as clear as it could be – and might be putting people off making a Will. Their aim is to make it simpler and in touch with the modern world.
The Law Commission is proposing a radical overhaul of the rules surrounding the preparation of Wills to make them more accessible and in tune with modern technology and 21st century life. In particular, they are considering:
- Lowering the age when a person could make a Will from 18 to 16. They acknowledge that 16 year olds are free to leave school, live alone, join the army and marry – and so suggest that they should also be able to decide how they would leave their possessions on their death;
- Introducing a new test to determine mental capacity which particularly takes into account our understanding of conditions such as dementia. They suggest that a formal scheme should be put in place to support people with such conditions to make a Will, in the same way that people are supported by family members or medical or other professionals to make decisions about their finances, living situation or healthcare;
- Being more flexible about accepting Wills which may not comply strictly with the formal requirements – for example, if one witness did not sign the Will in the presence of the person who made the Will. This would be subject to a court being satisfied that the person making the Will genuinely understood what he was doing and ensuring that a small mistake didn't invalidate the Will; and
- Allowing the possibility of electronic Wills. This might be allowing people to sign by way of an electronic signature or accepting that a person may have validly recorded their intentions by way of a text message, email, video or voicemail.
The proposals would dramatically change how people could enter into Wills, and would allow someone to put a Will into place quickly and ensure someone who might not have the capacity under the current rules to make a Will outline and have their wishes followed.
Whilst any methods that would encourage more people to set out their intentions about what will happen after their death should be welcome, caution is needed. The Law Commission acknowledges that the proposals could be risky. In particular, they note that accepting items such as texts or emails as Wills might lead to more disputes amongst family members. It should also be queried how such items would be kept secure and how it could be confirmed that they were actually made by the person making the Will – rather than someone who managed to hack their email account or saw that their mobile was left unlocked.
Additionally, the proposal that people with limited capacity should be supported in making a Will would likely be open to claims of "undue influence", again particularly if there is a family dispute. It is often the case that one child is more involved with an ageing parent's finances and care; if that child was seen to be influencing the making of a Will, tensions and conflict may arise.
Finally, it may be the case for many people that the current rigorous requirements involved in executing a valid Will helps to focus their mind and most importantly, seek accurate and tailored advice from experts. By giving instructions to a solicitor, gaining input on inheritance tax planning as it relates to their own assets and family situation, reviewing a draft and signing a formal written document in the presence of two independent witnesses, they appreciate the seriousness of the situation. They are also more ready to understand exactly what they are entering into and whether it fulfils their wishes. The risk is that greater flexibility and speed in making Wills may encourage people not to think through what they are entering into. The same is true for changing Wills – in the heat of the moment after an argument, you might be tempted to fire off a quick email cutting someone out of estate. When the dust has settled however, that might no longer be what you want – and you may not remember to change it back! Taking advice from a solicitor gives people the chance to understand and reflect on the impact of what they are putting in place.
The proposals aren't in law yet, so rather than relying on a text message to create your Will, please contact your legal adviser to make sure your wishes for your estate are put in place.