Concerns over Law Commission’s suggestions to reform Will-writing

The Law Commission’s consultation over reforms in relation to the existing law concerning the means by which a valid Will can be created and over the lowering of the age of testamentary capacity and its definition has attracted an expectedly mixed response.

The Solicitors for the Elderly (SFE) organisation has warned that plans to overhaul inheritance laws could lead to a greater number of Will disputes. The independent national charity was responding after the Law Commission outlined plans to update current legislation, which it argues is rooted in the Victorian era.

The Commission wants legislation to make greater provision for new technology, adjust mental capacity requirements and open the door for the testamentary age to be lowered to 16.

Outlining the arguments for reform, Law Commissioner 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 But the law is unclear, outdated and could even be putting people off altogether.”

However Claire Davis, SFE’s director, said: “Wills are extremely powerful documents and it is important people understand the potential risks we are exposing ourselves and our loved ones to without seeking professional legal advice.

The Law Society has said some of the proposals are of interest, while acknowledging that one of the concerns about electronic Wills is that they could be more open to fraud or the undue influence of vulnerable individuals.

CLC’s Head of Private Client, Neil Acheson-Gray, has commented:  “I have not detected significant demand for change. Those who make Wills seem to retain a healthy respect for the established procedure and the reasons for its evolution.

“The requirement for two witnesses present at the time of execution seems difficult to emulate in the technological age and some of the essential safeguards of making a Will with professional support may be lost. How can capacity and the absence of influence be tested if there is no independent person involved in the process?

“People will always contest Wills and it is the role of the professional draftsman to eliminate the prospects of success or indeed when the boot is on the other foot, to seek to find chinks in the armour when instructed to do so.”

If you require advice on Will disputes please contact Neil Acheson-Gray, Ian West, or Michael Woodward or visit our website.