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Reform to Wills - Imminent Changes Afoot?

wills

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The Law Commission has been carrying out a consultation since July of this year on whether these laws are outdated and if changes should be made to the way Wills are made.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.

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'Outdated' Wills To Become Digital

wills
Are Wills soon to get a much needed digital makeover, with texts becoming a legal document? Our Solicitor Chris Dickinson explains. 

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Given advances in today’s technology, this process seems slightly outdated and it has recently been branded as such by the Law Commission.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.

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