Is it Time to Modernise Wills?
In 2016, the England and Wales Law Commission began a project to review the preparation of Wills, which have, largely speaking, followed the principles and legislation of the Wills Act 1837.
In 2017, the Commission held its first consultation and has this month launched the second consultation on two main issues:
- Should it be possible to prepare an electronic Will given the advancement in technology?
- Should the automatic revocation of Wills on an individual entering into a marriage or civil partnership continue?
Digital Wills
During the COVID-19 pandemic, legislation was introduced to enable the witnessing of Wills to be undertaken virtually, to recognise the restrictions under which we were all living. Since that time, various countries around the world have continued to allow and progress reforms to their legislation and the UK is now considering whether to move with the times.
So much of life today is carried out electronically, and we are all used to being able to sign certain documents electronically, to be able to undertake online banking securely and live our life surrounded by technology. Therefore, why should it not become possible to prepare a digital Will?
The answer is, of course, that it should be possible, but that safeguards must be put in place to ensure that any electronic Will does reflect the final wishes of the individual, that there is no fraud or undue pressure, that the individual understands the terms of the Will to have sufficient knowledge and approval of its contents and that there are no issues surrounding the capacity of the individual at the time of making the Will.
The consultation is the opportunity for people to provide feedback on these challenges and it must be hoped that a safe and secure outcome can be achieved.
Automatic Revocation?
There are many instances of when the automatic revocation of a Will has caught out an individual who had not appreciated a previously prepared Will was no longer valid. However, the greater concern of the Law Commission arises because of the concerns over predatory marriages and vulnerable people.
The capacity required to enter into a new marriage is a lower threshold than the capacity required to prepare a new Will, meaning that any existing Will automatically becomes invalid and that the intestacy provisions would then make provision for the new spouse or civil partner. This form of financial abuse is a known concern and the Law Commission is seeking to understand how often this may arise and whether or not the automatic revocation should continue.
Once again, there will be a balance to be struck and we wait to see what the outcome might be.
Here to Help
If you wish to discuss things further, or have any questions, please do not hesitate to contact Richard Horwood, Partner and Head of Private Client, or any member of the Private Client team who deal with the preparation of Wills.
Please note the contents of this article are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.
