Proposed Reforms to Will Writing in England and Wales

The Law Commission of England and Wales has expressed concern over the current law of wills, saying that it is out of touch with modern day living and in great need of reform.

It stresses how important it is for all adults to have a will, but highlights that around 40% of adults who die do so without a will in place.

Issues with the current system identified by the Law Commission include:

• It is overly formal and restrictive. Even when the intentions of the deceased are clear, if the formal rules haven’t been exactly followed then the instructions in the will can’t be acted on.
• A medically out-of-date test is used to determine whether the person writing the will had sufficient mental understanding to do so. In addition, it doesn’t take into account recent understandings of conditions such as dementia, where there can be variations in mental capacity.

The Law Commission has therefore launched a consultation exercise that seeks views on a number of proposed reforms in England and Wales, including:

• Giving the court power to recognise a will in cases where the formality rules haven’t been followed but the will-maker has made clear their intentions.
• An overhaul of the rules protecting those making a will from being unduly influenced by another person.
• Applying the test of capacity in the Mental Capacity Act 2005 to the question of whether a person has the capacity to make a will.
• Providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will.
• Giving the Lord Chancellor power to make provision for electronic wills.
• Lowering the age at which people are able to make a will from 18 to 16 years old.

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