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4-08-2017

The Law Commission is consulting on whether it is time to modernise the way Wills are made. We reflect on proposals and emphasises the importance of protecting those susceptible to influence and minimising the possibility of fraud

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Most of the rules about how to make a Will are 180 years old this year. The Wills Act 1837 (as well as a plethora of other statutes and cases) sets out strict requirements for what makes a Will valid. The way the world works, the way transactions are made and how contracts are entered into have changed almost beyond recognition since Queen Victoria came to the throne, and the Law Commission of England and Wales is looking into whether it is time to modernise the way we make our Wills (here).

Making a Will is very important. In the majority of cases, it deals with the whole of a person’s estate. Getting it wrong could mean that those you would not want to receive anything inherit your entire estate, while those you thought you had specifically provided for get nothing. It goes without saying that it is strongly recommended that anyone making a Will should take legal advice from a specialist in this area.

The difference between a valid Will and an invalid one can be difficult to determine to the untrained eye and the smallest error in completing it could render some or even the whole of a Will useless. As it happens, one of the present proposals is that, where a person’s wishes are sufficiently clear, the court should have the power to implement those wishes.

Traditionally, Wills normally have to be made on paper. It is not true in all cases – there are already exceptions for those on active military service (a rule which predates even the 1837 statute), who can make Wills orally provided the intention is clear.

In some places, electronic signatures are now treated as legally binding, so why not also for a Will? Why should a Will have to be in hard copy at all? Blockchain technology and other security features have developed such that it must surely be possible to verify that the contents of a particular electronic document are the same as when they were originally ‘e-signed’ and that they were e-signed by the named individuals.

However, whenever we step into the world of electronic communication (in a sense, a Will is a form of communication, through which a person speaks to the world about who is to inherit what from the estate), we immediately encounter opportunities for fraud and undue influence. Then again, that is true with non-electronic documents. Indeed, it can sometimes be easier to prove fraud in the case of a forged hardcopy Will than in the case of an electronically forged document.

There are other issues the Law Commission is looking at: reducing the minimum age for making a Will to 16 (one can marry at 16, so why can one not make a Will at that age too?), introducing a statutory presumption of mental capacity, even using other external evidence of a person’s wishes for the court to rely upon.

Whatever the outcome is, it will be vital to incorporate into any new law sufficient protection for the young and immature, those susceptible to influence and those with uncertain mental capacity, as well as to find a way to minimise the possibility of fraud.

The Law Commission should also take care that they do not allow rash, casual or off-hand comments, such as those frequently found on social media or in text messages and emails, to take the place of what should be carefully considered decisions which can have a significant impact on those nearest to them.

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any individual case. No liability is accepted for any use of the information contained in this blog post

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