Law Commission Consultation on Modernising Wills

The Law Commission for England & Wales has launched a consultation into modernising the law surrounding Wills which it describes as 'largely…

It has been widely reported that the Law Commission for England & Wales has recently launched a consultation into modernising the law surrounding Wills which it describes as 'largely Victorian'. The Law Commission has added that the current rules were "unclear" and could be putting people off from making a Will.

The current law surrounding the making of Wills is mainly governed by the Wills Act 1837. However, between the 1837 Act and subsequent case law, the general rules of making a valid Will are relatively straightforward:

  • The person making the Will (called the testator) must have the mental capacity to do so, i.e. they must understand that they are making a Will and the effect that signing it will have on their assets when they die.
  • The Will must be in writing, which the testator must sign, in the presence of two witnesses who must provide their details
  • The testator must be making the Will of their own free will, with no undue influence from anybody else.

The Law Commission is considering whether texts, emails and other electronic communications should be recognised as a valid Will in certain circumstances. It gives the example where a car crash victim has not made a formal Will but has expressed their wishes in electronic communications, such as a text or email. The family could then apply to a court to have those communications recognised as a formal Will. These messages could only then be recognised as a Will if a judge approved.

There are a lot of issues to consider when deciding whether electronic communications could be considered to form somebody's Will. AOL, Apple, Linkedin, Snapchat, Tumblr and Yahoo are but a few of the social media companies to have either been hacked or suffer data breaches in recent years, with customers log-in details and passwords believed to have been obtained by third parties. By allowing electronic communications to be considered to form a Will, it could potentially be open to abuse, i.e. someone who know a testator's log-in details could send a message purporting to be from the testator them self.

It also raises the question of what would happen if someone executed a valid Will in the traditional way and then later made statements via e-mails and / or social media posts, offering to give friends and family their assets in contradiction to the Will. Would the electronic communication revoke the formal Will provisions?

In an age where e-mail hacking and data breaches are never far away from the news, it may be re-assuring for people to know that a formal document has been prepared by a legally qualified person and signed by an individual, in the presence of two witnesses - who can be questioned as to the validity of the execution of the Will to provide certainty.

That said, we do welcome a review of the whole process of how Wills work and are not against modernisation. We are often frustrated to see clients come to us with Wills prepared by other law firms which use archaic language when more straightforward layman's terms could be used. In these situations, clients often find it difficult to understand their own Will papers, which are meant to detail exactly how they would like their estate to be distributed on their death.

Another recommendation would be the compulsory registration of Wills on an online Wills database.  This would assist people when searching for a Will of a deceased person and provide confirmation of the most recent Will to be made. The current system with the National Will Register is only on a voluntary basis.

Another area that could benefit from modernisation is that relating to the intestacy rules - the rules which govern what happens to a person's assets if they die without making a valid Will. The law as it currently stands does not recognise unmarried, co-habiting couples (sometimes referred to as 'common law marriages'), unregistered civil partnerships, and second families. In today's society, many couples have not formally 'tied the knot' and, if they have not made a valid Will, then the surviving partner will not receive anything.

The Law Commission states that the use of electronic communications is aimed at encouraging people to make a Will as it reports that 40% of the population will die without having made a Will. One positive use of modern technology may be to run social media campaigns to encourage people to make a Will. A lot of people are put off making a Will because they do not wish to consider their own mortality, but making a Will can give peace of mind to know that their estate will be distributed exactly as they wish.

Responses to the consultation paper are required by 10 November 2017.

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