Law Commission Calls for Will Writing Reform

The Law Commission for England and Wales has branded the current legal system as ‘outdated’ and ‘unclear’ and has called for the law regarding will-writing to be relaxed, stating that notes, emails and even voice messages should be used as an alternative to a written will. They also recommend that the minimum age to have a will is reduced from 18 down to 16.

It is estimated that around 40% of adults dying each year do not have a will. This means that their estate will not necessarily pass on to whom they wish, as it will be prescribed under the laws of intestacy. Some argue that the laws surrounding will-writing discourage people from writing a will, as they date back to the 1800’s and are regarded as being very strict, especially surrounding those with mental health issues.

You may not be aware of other rules surrounding will-writing. For example, marriage revokes any previous wills and so any specific provisions, perhaps for children from a previous marriage, would be ignored. The bulk of the estate would go to the new spouse under intestacy laws.

The Commission also wants to make way for electronic wills which they believe will help to reflect the modern world.

Under the proposals, new powers would be granted to County and High Court judges to decide, on the balance of probabilities, whether a recording or note accurately reflects the wishes of the person making the will.

We feel that these new proposals could be very risky. It might be difficult for a judge to decide on what state of mind a person was in when they sent a text message or wrote an email. For example, for a written will, certain triggers are looked for which could indicate that there was not the mental capacity for the will to have been signed, such as whether the signature appears weak, erratic or printed. This could also signal that the testator was signing the will under duress. If the will is subsequently challenged, witnesses can be called to give their opinion on whether the testator appeared to sign the will of his own accord.  Checking the signature for signs of this would not be possible with an electronic message and so it remains to be seen exactly what measures would be taken to establish state of mind, as well as what systems would be in place to prove the theory either way. The checking process and requirement of witnesses also make it much more difficult to falsify a will than a text or email.

Although the will-writing process can take a little time, it means it is less likely be done on an impulse. It is much easier to send a quick email, perhaps after a row, than it would be to go through the process of writing a will with a professional, which would include meetings to understand all of your wishes in detail.

Another vital aspect of any will is that the gifts being made are clearly defined. For example, ‘I leave my necklace to my daughter’ would not suffice, as if there is more than one necklace in your estate, then how do the executors know which necklace you meant to leave to your daughter? An email detailing a wish such as this may fail to properly describe the gift being referred to, which can mean that it would fall back into the residuary estate and would be distributed in accordance with other residuary items. This would be avoided by a meeting with a professional who is experienced and understands the key requirements of a will.

It is important to have a current will, professionally drafted, and we work with our client base to prepare or update family wills. This goes hand in hand with addressing succession plans for the future and carefully considered inheritance tax planning. As family circumstances change and businesses evolve, it is important to ensure wills are kept up to date to cover such changes. You rely on us to deal with your financial matters and therefore it is a logical extension to our tax planning services that we also prepare wills and provide probate services.

If the will-writing process does change, and as a result there is less clarity in how they are prepared, the risk of the will-writing and probate process being contentious will rise. We are authorised to undertake non-contentious probate and we work closely with various local firms of solicitors, particularly for any potentially contentious cases, and always refer on any matters of concern.

If you would like to discuss any of the above, then please do give one of our team a call and we will be happy to assist you with the will-writing process.