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England: Law Commission calls for overhaul of wills regime

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The outdated law of wills needs overhauled according to the Law Commission of England and Wales.The independent body said that Victorian laws, out of step with the modern world, are failing to protect the vulnerable – and not allowing others to distribute their property upon death.

The Law Commission is consulting on proposals to soften the strict formality rules, a new mental capacity test which takes into account the modern understanding of conditions like dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.

The commission also wants to pave the way for the introduction of electronic wills. Changes could see texts, emails and other forms of electronic communication recognised as wills in exceptional circumstances.

Law Commissioner Professor 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 But the law is unclear, outdated and could even be putting people off altogether.

“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.

“That’s not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”

As a result, in a new consultation paper launched today, the Law Commission proposes:

  • 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.

    • In its consultation, the Law Commission also asks the public what the main barriers they see to people making a will and to tell it about their own experiences of disputes over wills following the death of a loved one. The paper also asks whether the rule that marriage revokes a will should be retained or abolished.

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