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Legal Update: important changes to Will legislation

Proposals for wide-reaching Will reforms could increase the cost of making one.

As we have covered in various articles, it is important that everyone over 18 has a Will. This not only includes how you wish your money, property, shares etc. to be distributed, but also includes what happens to your digital assets. As we covered last year, Colin Hehir had to obtain a Court order to access the photos and memories on his son’s password protected MacBook after he was tragically killed on a night out.

Dying without a valid Will in place can leave your family and loved ones with a whole host of problems.

A major consultation by the Law Commission ended on Friday 10th November 2017.  We have been talking to people in the West Midlands and assessing the impact these proposals may have on those yet to make their Will.

Key Will Reforms

The consultation document stretched to over 200 pages and received over 80 detailed proposals; far higher than many recent property, family and trust projects.

The key proposals included:

  • Making provision for electronic Wills- i.e. those made by individuals using on-line software or apps rather than a Will-writer or solicitor
  • Modernising the terms used
  • Lowering the minimum age for making a Will from 18 to 16
  • Modernising the mental capacity test

Several of these changes were welcomed. The modernisation of terms (e.g. changing “testator” to “Will-maker”) makes things easier to understand and lowering the minimum age is beneficial as most young people have digital assets that they want to leave to friends and family.  In virtually all cases, they would want to ensure that their family could access treasured photos on their smartphone or computer in the event of their death.

Other proposals are proving to be controversial.  Most people we spoke to expressed concerns over electronic Wills and the ability of technology to help people to get it right.  As one interviewee said, “I want to ensure that the right people get what I want to give them without any arguments.”

The biggest fears mentioned were fraudulent Wills or Wills being made under undue influence. Currently, with paper-based Wills that need to be physically signed, there are protections in place to ensure that the person making the Will is not under undue influence when they do so.

We reported in our Frequently Asked Questions on contentious probate on the case of a Will failing because the daughter of the elderly Will-maker sat in on discussions with the solicitor.  The daughter had significantly benefitted from the Will and the Court felt that the Will-maker did not have the opportunity to fully appreciate the contents before its completion.

Even if the Will-maker had wanted to leave a large proportion of the estate to her daughter, this simple action of her sitting in on discussions can cause problems for the validity of the Will.

Electronic Wills could make it much easier for beneficiaries to unduly influence the Will-maker without detection but it equally leaves every electronic Will open to dispute when someone has significantly benefited.

Another proposal that will have a big impact is the modernisation of the mental capacity test.  The current test of mental capacity comes from Victorian times and focuses on “delusions” of the mind – it does not take into consideration mental conditions like dementia. The proposal is that the test for mental capacity set out in the 2005 Mental Capacity Act should be adopted for Will-makers.

This change, while generally welcomed, is likely to increase the cost of making a Will as the burden to apply this test falls on the solicitor or Will-writer.

A key concern expressed by some is that this will push more people to use uninsured and unqualified Will writers.  The general feeling of those surveyed is that if you are going to write a Will, then it is vital that it is done right. Done incorrectly, people might not receive what you want them to or your Will may be contested or ruled invalid.

Else’s Opinion

Kathryn Caple, Head of Wills and Probate said We are looking at a major overhaul of the law surrounding Wills. It is clear that a number of these proposals are welcomed but it is important that the concerns surrounding some of them are addressed.  Currently electronic Wills produced by software or apps are open to abuse.  Also, the question around how the mental capacity test would be applied to an on-line Will-maker has yet to be answered”.

Chris Else, Managing Partner added “Homemade Wills are especially open to dispute and the rise of electronic Wills is unlikely to change this.  We highly recommend that those looking to make a Will use a fully qualified and insured solicitor. It is clearly belter to do so before the new changes come into force which will increase the cost of making a Will”.

If you would like the peace of mind that comes with having a valid Will in place, then please contact our Head of Wills and Probate, Kathryn Caple, on 01283 526230 or at kathryn.caple@elselaw.co.uk. Kathryn is an experienced solicitor who is very sensitive to the needs of her clients.