The Law Commission have in the last week announced that they intend to start a review of the law relating to Wills in early 2015 and the intention is that final recommendations and draft legislation will be published in early 2018.
The Commission estimate that more than 40% of the adult population do not have Wills and highlight that because of the technical requirements involved in preparing a valid Will that many Wills are ultimately found to be invalid particularly where they have been drafted without the help of professional advice.
Where there is no Will the intestacy rules will apply and these are described by the Commission as a “blunt instrument” which “cannot replace the expression of a person’s own wishes”.
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The current legislation governing Wills dates back over 150 years.
The primary legislation governing the creation of Wills dates from 1837 and the rules relating to the testamentary capacity required to execute a valid Will stem from a case that was decided back in 1870. The rules have been criticised by many as being difficult to apply and understand and there are concerns that these rules date from a Victorian era which cannot contemplate the social, medical and other changes which have occurred over the last 100 to 150 years.
It is recognised that the issue of mental capacity is becoming increasingly important and creating a growing number of problems in an era when people are living far longer than they did in the past.
The Commission say that they will focus on four areas that they have identified as potentially needing reform:
- The technical formalities to create a valid Will.
- The capacity required to make a Will.
- Mutual Wills (Wills prepared by a couple on the basis that the survivor must honour the wishes of the first to die where no formal trust has been created).
- The rectification of errors in Wills.
There is an increasing amount of litigation surrounding the validity of Wills and the issues listed above and the hope is that reform of the law will help to reduce the amount of expensive litigation that is required and avoid the animosity and anxiety that such disputes cause within families adding to the distress that they are suffering at an already difficult time.
A review of the law is welcomed. There are an increasing number of disputes over the validity of Wills and also the number of people who do not have Wills is at a worryingly high level. If the law can be amended to make it simpler and easier for Wills to be prepared in a form which is less likely to be open to challenge later then it must be in the interests of all concerned.
However as any changes are unlikely to be put into effect for several years, our recommendation is that all adults regardless of their age ought to have a valid Will in place which reflects their up to date wishes and that that Will should be reviewed on a regular basis.
Private client teams of Stephens Scown based in Exeter, St Austell and Truro would be pleased to advise on the preparation, update and review of Wills whilst introduction of the new rules is awaited.
Ian Newcombe is a partner and head of the private client team at Stephens Scown LLP in Exeter, which was named Private Client and Family Law Team of the year at the British Legal Awards 2013. To contact Ian for further advice, please call 01392 210700 or email solicitors@stephens-scown.co.uk