Modernising Wills: key changes proposed in the Draft Wills Bill
The Law Commission has published its long-awaited report and Draft Wills Bill, proposing the most significant reforms to Wills law in nearly 200 years.
Aiming to modernise the outdated Wills Act 1837, the reforms seek to bring testamentary law in line with today’s societal and technological realities. Below, we outline the key reforms and their potential implications for you.
Key proposals in the Draft Wills Bill
A new Wills Act: The Wills Act 1837 would be repealed and replaced with updated language and modernised provisions, bringing clarity and accessibility to this area of law.
Wills for young testators: The proposals would allow 16- and 17-year-olds to make wills in the same way as adults. Additionally, courts could authorise children under 16 to make wills if deemed competent, a reform particularly relevant for terminally ill children.
Electronic Wills: Testators would be able to create Wills digitally, provided a reliable system ensures the Will's authenticity and integrity. Witnessing via video conferencing would also be permitted.
Dispensing power for formalities: Courts would have discretion to validate Wills that do not meet all formal requirements, provided the document clearly reflects the testator’s intentions.
Modernising testamentary capacity: The Mental Capacity Act 2005 test would replace the longstanding Banks v Goodfellow test for testamentary capacity. This statutory approach aligns with modern capacity assessments but raises questions about its practical application.
No revocation by marriage: Marriage or civil partnership would no longer automatically revoke a Will, addressing concerns about predatory marriages and the evolving nature of modern relationships.
Gifts to witnesses: The prohibition on gifts to attesting witnesses would be extended to include their cohabitants and those signing on behalf of the testator. However, courts could allow such gifts if deemed 'just and reasonable'.
Presumption of undue influence: Courts could presume undue influence where there is evidence suggesting it, shifting the burden of proof to the alleged influencer. This reform aims to protect vulnerable testators while preserving the ultimate test for undue influence.
Rectification of Wills: Courts would gain broader powers to rectify wills, including correcting deliberate but mistaken choices of language, offering greater flexibility in addressing errors.
Ademption reforms: Gifts of property would no longer fail if the property is sold before death, provided the sale was under a contract or by an attorney acting under a Lasting Power of Attorney. This ensures the intended beneficiary benefits from the proceeds of the sale.
Implications for you
These reforms, if enacted, could significantly impact how Wills are prepared, executed, and challenged. Key takeaways include:
- Flexibility and accessibility: The introduction of electronic Wills and the ability for younger individuals to make Wills would make the process more inclusive and adaptable to modern needs.
- Enhanced protections: Provisions addressing undue influence and predatory marriages aim to safeguard vulnerable individuals.
- Reduced litigation: The dispensing power and extended rectification provisions could minimise disputes over technical errors or unclear intentions.
Conclusion
The Draft Wills Bill represents a bold step in bringing testamentary law into the 21st century. By addressing long-standing issues and embracing modern technology, the proposed reforms aim to make Will-making more accessible, secure, and reflective of individual intentions.
We will keep you updated on whether the proposals become law. In the meantime, whether you are considering updating your Will or planning your estate for the first time, these reforms highlight the importance of seeking expert legal advice to ensure your wishes are clearly expressed and protected.