InsightsInsight - Wills and Probate - POSTED: March 20 2018
Law Commission’s outline of next steps after will review
The Law Commission’s consultation on wills draft in November and a number of issues were raised: Capacity to make a will, Power for the court to recognise an information document as a will and Electronic wills.
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The Law Commission’s consultation on wills draft in November and a number of issues were raised:-
- Capacity to make a will;
- Power for the court to recognise an information document as a will; and
- Electronic wills.
Capacity to make a will
The leading proposal is that the test for capacity should be brought in line with the Mental Capacity Act (MCA), rather than the 1870 case of Banks v Goodfellow. The suggestion is the principles of the case should be reflected in the MCA code of practice. Many argued that the Banks case has stood the test of time and is often helpful in its focus on making a will. In addition, the common law status of the case means it can evolve over time to changing social situations, rather than be a rigid rule embedded in legislation. Others argued that the MCA route would allow more professionals i.e. doctors to understand the legal test for making a will.
The Law Commission have reported that the response to incorporating the test into the MCA was positive.
Recognising informal documents
Many expressed concern about the uncertainty, abuse and rise in litigation this could create whilst others thought it was a positive step away from the strict formal requirements of making a will.
In response to the concerns raised, the Law Commission have begun gathering evidence from law reform organisations and a number of common law jurisdictions where these powers have been enacted for their views and whether the worries about an influx of litigation were founded.
Electronic wills are not without technical challenges, as the Law Commission have highlighted. It was noted that this should only be introduced when there is sufficient protection against fraud and undue influence. In addition, for electronic wills to work in practice, this would no doubt need a reform of the probate system to be fully digital. Whilst the younger generation have grown up in the digital age, it was noted that the older generations have not and electronic wills could dissuade some from making a will altogether.
Whilst it was noted that there are some advantages to electronic wills, it was said that this was only a marginal benefit as paper wills are reasonably convenient and easy to store whilst offering protection from fraud.
The final report on the reform of wills is due to be published by mid-2019.
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