More Wills: Less Litigation
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Date Published:10 Mar 2016 Last Updated:24 Oct 2021

More Wills: Less Litigation

Wills, Trusts & Probate

Wills are a critical part of lifetime planning and a necessity for most of our clients.

Last month we learned that the Government is concerned about the number of people who do not have Life Planning in place and therefore will specify a day next year to promote awareness of Lasting Powers of Attorney and Wills.

The Law Commission has also announced potential changes to the law on modern Wills via a review of the Wills Act 1837. The Law Commission will begin the review next year with a view to preparing a draft Bill over the next four years.

It is hoped that the draft bill will bring the law into line with modern family structures i.e. cohabiting couples and second marriages, which should lead to fewer deceased person’s Estates becoming embroiled in expensive litigation.

The statutory definition of “testamentary capacity” which dates from 1870 will be re-analysed. This is due to the huge number of Wills being challenged in the Courts on the basis that the Testator did not have sufficient mental capacity to make a valid Will. In a world in which increasing numbers of people are suffering from dementia; a review of the definition is appropriate. There are numerous different types of dementia of which only a minority prevent a person from making a Will. It is often difficult for a solicitor to determine whether a person has sufficient capacity – particularly as they are applying a legal test to a medical condition. Therefore the case law does need to be reviewed in light of current medical understanding of such conditions.

The review will also question whether formal rules such as the requirements that Wills are signed and “in writing” remain necessary. Consideration will be given to whether it is now appropriate for people to be able to create Wills electronically, and whether this will make Wills more accessible. However, it is arguable that such measures could actually lead to further litigation on the grounds of undue influence i.e. that the Testator did not wish to make a Will on such terms and was forced to behind closed doors.

The review will also investigate the matter of mutual Wills – a type of Will made jointly with another which essentially binds you to agreed wishes. Such wills are often problematic and rarely appropriate in modern times. It is not sensible to commit yourself to a Will designed for one set of circumstances when you do not know what the future will bring. It is better to make a revocable Will which can be reviewed and amended over the years.

Overall the review is welcomed and will make for interesting reading. In the meantime having an up to date Will in place should be a priority.