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12 June 2023 | Comment | Article by Victoria Jones

The Law Commission reignites their review of the law relating to wills

The law relating to how wills are made, the Wills Act 1837 (“the Act”), is over 185 years old and since 1837, there have been huge changes in family dynamics and massive advancements in both medicine and technology.

As a result, the Law Commission (a statutory independent body in England and Wales which reviews legislation) has recognised a need to review (and potentially update) the Act. In 2017, the Law Commission therefore held a public consultation about reforming the law relating to wills and it considered issues such as:

  • electronic wills;
  • lowering the age when a will can be made from 18 years to 16 years;
  • enabling the court to dispense with the formalities for a will – where it is clear what the deceased wanted;
  • changing the test for the capacity required to make a will (known as testamentary capacity) – to take into account advancements in the understanding of health issues e.g. dementia;
  • providing statutory guidance for doctors or other professionals conducting an assessment of testamentary capacity; and
  • making new rules to protect anyone making a will from being unduly in influenced by another person; and

After the consultation closed in November 2017, the Law Commission began to review the responses received, before developing their final policy and recommending any changes in legislation. However, in 2019, the Wills Project was then paused, so that the Law Commission could undertake a review of the law relating to weddings.

Covid-19 – temporary changes

Shortly afterwards, in 2020, the Covid-19 pandemic created a need for some emergency changes to be made to the will-making process, because lockdown and social distancing rules created a potential problem for anyone wanting to make or update their will at that time. This was because Section 9 of the Act, states;

”No will shall be valid unless –

(a) it is in writing and signed by the testator or by some other person in his presence and by his direction; and

(b) it appears that the testator intended by his signature to give effect to the will; and

(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary. “

This meant that a will would usually only be valid if it was witnessed by two people in the physical presence of the testator (the person making the will). Yet, social distancing rules, the need for some people to self-isolate, and also the fact that a beneficiary of a will should not act as a witness to it, made it difficult for that to occur.

A solution had to be found quickly in order to ensure that those who wanted to make or update wills during this period could do so. Some people turned to technology, whilst others found inventive ways to execute their wills e.g. using video conferencing or signing their will outside with witnesses standing 2 metres away from them (and each other) when signing and witnessing the will.

However, due to the above requirements of Section 9 of the Act, there was then uncertainty about whether or not these alternative methods of signing a will would invalidate the will.

On 25 July 2020, this led to the Government clarifying the position, and the Ministry of Justice stated that the following examples would lead to a properly executed will during the pandemic, provided that the testator and the witnesses each had a ‘clear line of sight’ during the will signing process:

  • Witnessing outdoors from a short distance, for example in a garden or park;
  • Witnessing through a window or open door of a house or vehicle;
  • Witnessing from a corridor; and
  • Witnessing from an adjacent room into a room with the door open.

Wills which were witnessed via video link since 31 January 2020 (the date of the first registered Covid-19 case in the UK) can therefore be valid provided that certain other conditions are also met.

However, the Ministry of Justice also stated that; “The advice remains that where people can make wills in the conventional way they should continue to do so”. It is therefore important to mention that, even before the pandemic, a will could be declared invalid in England & Wales in certain circumstances e.g. if the testator was coerced into making their will or they lacked testamentary capacity at that time.

There are also concerns about the above alternative methods of witnessing wills prompting future disputes e.g. if video recordings of a will being witnessed are lost, or a testator is coerced by someone ‘off camera’ into making their will.

There are also specific rules about the wording which must be used in a will witnessed by video and therefore anyone who executes a will in this way should read the Government advice and also consider obtaining specialist legal advice.

The Government has not yet permitted electronic signatures to be used on wills, to reduce the risk of will fraud. It is also not also possible to sign a “counterpart” will under the temporary rules. This means that only one copy of the will must be signed by the witnesses and the testator.

The changes to will-making during the pandemic were brought in to provide a temporary, practical solution during exceptional times, and they are currently due to end on 31 January 2024 (though they could be extended further).

What next?

The Law Commission has previously stated that: “The law of Wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era.” That need has not changed and, in fact, there have been even more changes in society, medicine and technology since the public consultation closed in 2017.

It is therefore reassuring that the Law Commission has announced that the Wills Project is being re-started, and it aims to publish a supplementary consultation paper in September 2023, as opinions may have changed on certain issues since 2017 and new issues are also likely to have arisen. For example:

  • changing the law on wills could assist in preventing predatory marriage involving vulnerable adults. Currently, when someone marries, their will is usually automatically revoked and an unscrupulous ‘spouse’ may be able to take advantage of that;
  • the Covid-19 pandemic caused a surge in the use of video conferencing and other technology; and
  • recent technological advances mean that we will see the increased use of artificial intelligence (AI) in our day-to-day lives.

As with any proposed change in process, the potential risks involved in changing will-making will need to be carefully assessed, but the reignition of the Law Commission’s Wills Project could mean that we will be seeing some interesting and important changes in the law relating to wills in the near future.

Our Contested Wills, Trust & Estates team advise on will and trust disputes and minimising risk in relation to wills.

Author bio

Victoria is a Partner in the Contested Wills, Trusts & Estates Team. She advises and represents charities, homes and families in probate, charitable legacy and contentious will and trust disputes.

Victoria also specialises in cases involving the Mental Capacity Act 2005 and Court of Protection disputes. She has a particular interest in cases in cases involving financial fraud and disputed lifetime gifts involving vulnerable adults.

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