The Law Commission has recently published its consultation on wills with a view to modernising the laws that govern them. The law in England and Wales that governs wills is now over 180 years old and not fit for life in the 21st century.
It has been reported that around 40% of the adult population die without a will. Where there is no will, the intestacy rules dictate what happens to a person’s property when he or she dies, and the net result will not always work for everyone. There are around 3.3 million cohabiting families in the UK, but the rules of intestacy make no provision for that group of people. Likewise, if a person has remarried and has children from the first marriage, the intestacy rules may not give the desired result.
The Law Commission has therefore invited comment from the public on the following issues:
• What are the main barriers to people making a will?
• What are their experiences of disputes over wills following the death of a loved one?
• Should the rule that marriage revokes a will be retained or abolished?
The Law Commission is also consulting on proposals, among others, to:
• Enable the court to dispense with the formalities for a will where it’s clear what the deceased wanted
• Change the test for capacity to make a will to take into account the modern understanding of conditions like dementia
• Introduce the possibility of electronic will writing in the future
• Protect those making a will from being unduly influenced by another person
• Reduce the age at which a will can be made from 18 to 16.
In the last century, we have seen an increasingly ageing population, a greater incidence of dementia and a better understanding of medical disorders which could affect testamentary capacity. There has been an emergence and reliance upon digital technology, more cohabiting couples and more people having second families, and generally larger estates. This consultation is, therefore, long overdue and a welcome step to bringing the laws that govern wills in to the 21st century.