A Will revolution – danger ahead

13 July, 2017

Today has seen the announcement from the Law Commission that the current rules around making a Will should be overhauled.  It has suggested that the rules be significantly relaxed to make it easier to make a Will and is running a consultation until November to see what people think.

There is no doubt that such a change to achieve that objective is a sound one.  Whilst I have been practising law (for nearly 25 years), published analysis has consistently shown that approximately 40% of the adult population do not have Wills.  That can create all sorts of problems from not taking advantage of legitimate ways to minimise tax to unintentionally finding your assets are left to people you did not intend to benefit following your death.  A key driver for this consultation is the fact that, for those who fall within the 40%, many will not be married or in a civil partnership and are cohabiting. The current rules in that situation mean no provision is made for the partner who survives them.  They have to make a claim which can be very expensive, protracted and create huge issues between those closest to the deceased.  I should know as my firm deals with those types of case.  Nevertheless, the driver to encourage rather than discourage people to make Wills is hardly the stuff of heated debate.

It seems there is a feeling that the ‘difficulty’ in making Wills is putting people off.  Yes it is true that to make a Will you have to follow a process but, to put it simply, is it really that hard to draw up a Will setting out clearly what you want and getting that signed in front of 2 witnesses?  The Commission thinks so and its proposals follow a lengthy review it has carried out since 2015 which has included speaking to many interested parties.  It is suggesting that the formalities be dispensed with.  This is potentially huge.  It also creates a foreseeably bigger problem if followed through.

The proposals would potentially allow a text message, a voicemail or any type of written note to be treated as a Will.  Simple, yes, but fraught with danger.  It is suggested that a judge would have to decide in this situation whether a text was an accurate summary of someone’s wishes. This is where the danger lies.  How do you know?  We have many vulnerable people living today in an ever aging population.  Some are affected by conditions such as dementia, others susceptible to the subtle (or downright overt and menacing) pressures that can be brought about by family relatives seeking, to put it bluntly, more money.  The proposals give rise to real concerns around the risks of fraud.  It is very easy to see that it wouldn’t be long before a case came to court around a text message that turned out to have been typed by someone else for their own gain.  What about the situation where someone has a temporary falling out with their children and in a fit of pique produces a new Will on a whim because its easy to do and then relations are normalised the following day?  If they do not do something about that Will there will be all sorts of problems the family would face.  

An even bigger problem might surface where the individual does not have the necessary mental capacity to make a Will.  Sometimes under the current law this is established when solicitors are instructed.  If they believe the person lacks capacity then they will not proceed and draft a Will.  If someone can simply from the comfort of their own armchair make what they think is a valid Will under the new proposals but in fact they lack capacity, this will create even more issues for others to pick up.

As a firm which has a team specialising in Will disputes these proposals give rise to the very real prospect of significantly increased work for us and other firms who also specialise in this area.  It is unfortunately all too common that we see family members, and others, bitterly arguing over a document that may, or may not, represent the true wishes of the deceased.  Death does on occasion bring out the worst (and sometimes the best) in people.

The Commission readily acknowledges the potential dangers and is seeking views during the consultation process on this and a number of other issues, which can not be covered off properly within this blog.  It proposes, for example, to reduce the age someone can make a valid Will from 18 to 16. 

If you feel you have something to contribute then please go to www.lawcom.gov.uk/project/wills and download the consultation paper (be warned it is nearly 300 pages long) and make representations as you wish.