The process of making a valid Will is currently governed by the Wills Act 1837 – but a consultation may see these laws radically change. Chris Dickinson explains.
The Act provides, amongst other things, that a valid Will must be in writing and signed by the testator in the presence of two witnesses, who must also sign in the presence of the person making the Will and of each other.
The Law Commission has been carrying out a consultation since July of this year on whether these laws are outdated and if changes should be made to the way Wills are made.
Some of the key issues being considered are changing the way solicitors assess mental capacity for someone to make a Will, altering the age required to make a Will from 18 to 16, and giving the courts greater flexibility to uphold wills that do not meet the necessary legal requirements. Digital Wills may also be considered in the future.
Whilst some solicitors support in principle the proposal to extend the Court’s discretion to uphold Wills that do not meet existing legal requirements, there is also concern about making changes to laws that are long established and widely understood.
Cases involving applications to the Court by family members or doctors for an order to lead the withdrawal of life sustaining treatment have become increasingly common in recent times. However, a recent judgment means that the number of such cases may decline.
The judgement was made by Mr Justice Peter Jackson in the Court of Protection and is likely to have a bearing on how future ‘right-to-die’ cases are approached in the future. The ruling stated that providing strict medical guidelines have been observed and the family and medical staff are in agreement with the decision to withdraw treatment, there will be no requirement to obtain the consent of the Court.
This particular case involved a lady suffering with Huntingdon’s disease for which there is no cure. Permission was sought to end her treatment in June and was eventually granted by the Court in July - she died shortly afterwards having been in a persistent minimally conscious state for over a year and receiving treatment that both her medical staff and family felt were not in her best interests. The Official Solicitor acts for patients in these circumstances and has argued that all cases of this nature should be referred to the courts and so it is highly likely the decision will be appealed.
A Lasting Power of Attorney relating to your Health and Welfare can save this distressing situation for you.
Ensure that your affairs are in order to minimise stress for your family before and after your death. Join one of our free events to hear a short presentation about the different types of Will and LPA, and get some free tailored advice from one of our solicitors over a tea or coffee afterwards.
(Please note that Saturday's session is now fully booked)
For more information and to book your free place please contact Kayleigh O'Donnell on 01708 229444 or complete the form to the right.
(Please note - the seminars will be taking place in our boardroom, located up one flight of stairs.)
Following the Supreme Court’s decision in March of this year in Ilott –v- The Blue Cross & Others when it was thought that the principle of testamentary freedom had been bolstered, His Honour Judge Saffman in Leeds County Court has awarded an estranged daughter £30k of her deceased father’s £240k estate, despite the fact that he made it clear he had disinherited his children in his Will.
The earlier ruling of the Supreme Court had established that “it is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testators wishes cease to be of any weight. They may, of course, be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors.”
Despite the daughter having no contact with her father for several years before his death and the deceased having left a letter explaining why he was disinheriting his 3 children and leaving his entire estate to his friend, HHJ Saffman determined that the daughter’s wish to complete a veterinary course was a ‘maintenance cost’. The Judge was presumably satisfied that the evidence presented in the case was sufficient for the Act to prevail as against the wishes of the deceased.
A half sibling of the daughter, who was unable to work through ill health, was similarly successful having also made a claim under the Act, receiving a settlement of £22k.
The process of making a valid Will in England and Wales is currently governed by the Wills Act 1837, which states, amongst other things, that a valid Will must be in writing and signed by the testator in the presence of two witnesses, who must also then sign in the presence of the testator and of each other.
Given advances in today’s technology, this process seems slightly outdated and it has recently been branded as such by the Law Commission.
With a view to keeping up with the digital age, the Law Commission has drawn up plans to launch a consultation suggesting that a testator should be able to validly record their wishes in the form of notes, emails, voicemails and even text messages.
The proposals do not suggest that all such communications will be valid as a binding Will, but that the courts should at least be able to take into account ‘on the balance of probabilities’ exactly what the testator’s wishes were based on such communications that may be presented to them. If the courts are satisfied with the testator’s wishes, and that no undue influences have been placed upon them, then they could direct how the deceased’s estate be distributed even if this is contrary to an existing Will.
At present, even in cases where a testator has made their wishes unequivocally clear if the formalities of the 1837 Act have not been followed the courts do not have the power to intervene.