The Law Commission’s Report ‘Modernising Wills Law’ through the eyes of a Disputed Wills, Inheritance and Trusts Solicitor

Testamentary freedom has been a core and unwavering principle to the law of succession in England and Wales and this looks to remain the case. Testamentary freedom is the idea that a person should have the right to determine how their property should be devolved on their death and is best-placed to assess the needs of their family and others, as well as their own feelings about who might deserve what. This right is not universally applied, and a number of our European neighbours have laws that determine how an individual’s property should be devolved (or at least, how a percentage of it is to devolve). Of course, with the ability to make claims under the Inheritance (Provision for Family and Dependants) Act 1975, the extent to which testamentary freedom is absolute is arguable, but those claims come after death. An individual is still at liberty to leave their property to one child over another, a friend or neighbour or, were they so inclined, they may ‘cut out’ all of their relatives and associates and leave their estate to a charity instead.

The Report’s conclusions are plentiful and undoubtedly reflect the times in which we live. In this article, we explore the key areas in which changes are recommended.

Capacity

In order to make a will, a person must have the requisite mental capacity to do so. This is an important protection for individuals and as a principle, remains unchanged. What is set to change is the test against which the law will determine that capacity. The general test for determining whether a person has the capacity to make a decision is found in the Mental Capacity Act 2005 and applies to a broad range of financial and welfare decisions that a person may make in their life. However, the test for determining whether a person has the capacity to make a will is a unique one and dates back to an 1870 case – Banks v Goodfellow. In practice, the two tests will, more often than not, produce the same result. However, some key differences include the extent to which a person should be able to understand the consequences of the proposed Will (the Banks v Goodfellow test requiring that a person should understand the immediate consequences of their Will, whereas the MCA 2005 requiring that a person should understand the reasonably foreseeable consequences (which would include those that are distant effects)), as well as the extent of the information which should factor into their decision.

Since the introduction of the MCA 2005, the law has wrestled with the overlap and conflict between these two tests, and Banks v Goodfellow remains the authority. The Law Commission’s report recommends that the test found in the MCA 2005 should replace Banks v Goodfellow as the test for assessing whether somebody has the capacity to make a will. This is welcome; the language used in the Banks v Goodfellow test is (understandably on account of its age) outdated and archaic:

The concern will be that the MCA 2005 envisages that somebody can be assisted in making a decision:

Undue Influence

Currently, a person alleging that a Will is invalid on the ground that it was procured by undue influence – the law’s vehicle for invalidating Wills brought about by the requisite level of coercion – has a significant burden of proof. The best witness to whether undue influence occurred is the deceased. Sometimes the deceased may have been isolated by the coercing party and as a consequence, there are few or no good witnesses or pieces of evidence to support this. Whilst there are, of course, findings of undue influence in the courts each year, a claimant alleging this faces a significant uphill battle.

The Law Commission recommends that in some circumstances, “where the court is satisfied that there are reasonable grounds to suspect undue influence”, a presumption will arise and the court will infer the presence of undue influence. The Law Commission’s stated aim in recommending this is to address just how difficult it can be to prove undue influence in the context of a Will. This is welcomed; and all practitioners will recall cases where it seemed quite clear that undue influence was the only logical explanation, but the evidence, for one reason or another, just didn’t arise or exist. It is also suspected that the number of cases that will be brought before the courts concerning Wills brought about through undue influence will substantially increase because of many reasons, but not least, the fact that lockdowns and restrictions during COVID-19 fostered the perfect conditions for coercive relatives to bring wills into existence.

Revocation of Wills

When somebody marries or enters a civil partnership, the Wills Act 1837 provides that any existing Will is revoked by that marriage or civil partnership, unless there is evidence that the Will was made in contemplation of that specific marriage or civil partnership. The issue that this presents, specifically with elderly people and/or those with borderline capacity, is that the test of capacity to marry requires a lower level of capacity than that which is required to make a Will. As a consequence, somebody may have a will leaving their estate to their children, marry somebody but then be unable to make a new will apportioning their estate to whom they see fit. On death, their estate would devolve under the Intestacy Rules principally in favour of the new spouse.

This is particularly a problem give the rise of predatory marriages which, understandably, receive a lot of attention in the press. A predatory marriage is one where somebody, usually elderly and often without the capacity to make a will is induced by their ‘predator’ into marriage. That person is then able to deprive their victim of their assets during lifetime, but also on death. There is no statutory mechanism by which a predatory marriage (or any marriage, for that matter) can be undone after death.

With the extended period by which couples cohabit and are together before marriage or civil partnership, many wills may not satisfy the requirement of being made in contemplation of marriage but are nevertheless made with that future spouse or civil partner in mind. Put simply, the operation of revoking a will by marriage is less appropriate today than it was in 1837. We welcome the Law Commission’s recommendation that the revocation of Wills by marriage or civil partnership should be abolished.

Other Changes

The changes above are just a small number of significant changes recommended by the Law Commission. Other changes include:

1. Children aged 16 and 17 would now be able to make wills just as adults can; the existing law provides that a person must be 18 in order to have the requisite capacity to make a will. As the Report highlights, at 16 somebody can join the Armed Forces, consent to sexual activity and make medical decisions, but must wait until they are 18 before can vote in general elections or buy cigarettes and alcohol. This change is welcomed. It is also worth adding that the age in Scotland to have testamentary capacity is just 12.
2. The courts would be able to dispense with the need for formalities to be complied with (being the various requirements set out in section 9 of the current act surrounding signing, witnessing and attesting etc.), provided that the court is satisfied that whatever the document (or other medium perhaps) is, it evidences the intention of that person as to how to dispose of their estate on death). As a general observation, the Law Commission found that the formalities themselves are not necessarily a barrier to people making Wills. There should not be overbearing barriers to making a Will. However, there is good reason for avoiding the making of a Will to become too easy; the benefit of advice in making a Will should not be overstated and we do not want to be in a world where people are nonchalantly making Wills, without the benefit of advice, because it has become too easy to do so.
3. Electronic wills may be coming – and the Law Commission recommends that these are put on an equal footing to paper wills. The arrival of this at some point was inevitable. However, due regard will have to be paid in considering how alteration, destruction or forgery will be prevented. The Law Commission recognises that appropriate systems and controls will have to be put in place in this regard and that an ongoing power, exercisable by the Secretary of State, will need to exist to monitor and continually update this system.

There are a number of changes that have not been touched upon but are welcomed in order to bring the law governing wills into the 21^st century. The Law Commission’s Report is likely to be welcomed by practitioners and the public alike and we eagerly await the draft Bill’s journey through Parliament, and look forward to seeing what makes it onto the statute books.

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