Will Law. Modernising, simplifying, digitising?
Will Law – the rules and regulations the govern the writing of Wills in the UK and Scotland were established in 1823.
After almost 200 years in practice is it now time to radically review current Will Law and bring it in line with modern society?
Why don’t people write a Will?
Writing our Will is one of the most important things that we do and as such should be simple and straight forward. A Will sets out how we would like our assets to be distributed. Puts in place provisions to look after our children, friends, and members of our family. And, for many their funeral wishes.
HOWEVER, around 40% of the UK’s adult population does not currently have a Will. Meaning around 250,000 people die intestate each year, leaving their families to deal with the financial and emotional fall out this brings.
While there are many reasons why people don’t write a Will. Addressing one’s own mortality is pretty high on the list. Law Commission Professor Nick Hopkins suggests that it’s the current outdated, unclear and difficult to understand Will law that could also be putting people off. So, what exactly is it about the current Will Law that needs changing?
What’s wrong with current Will law?
Well for a start it’s almost 200 years old. There aren’t many things still being used today that have not been modernised or improved over the last 200+ years. In fact, when we look back at old laws it’s with a certain degree of mirth. For instance, legislation is still in place that states it is illegal to attend Parliament in a suit of armour. Fire a cannon near your house. Knock on a door then run away. Caught a Great Sturgeon? You best give the Queen a call, she’s got first dibs.
See, none of these make any sense in the context of modern life. So why then are we still writing our Wills in accordance to a 200-year-old law?
Will Law 2.0, reflecting modern life
Enter the Law Commission – Following a public consultation into Law Reform, the law commission identified two areas of Will Law that were not working: testamentary capacity and formalities.
What is testamentary capacity? Wills are only valid if the person writing is deemed to have the mental capacity to do so, i.e they understand what they are doing and are not being coerced in any way. Testamentary capacity is currently measured using the Banks Vs Goodfellows test which was derived from a case dating from 1869. Not, as you would assume, the test set out in the Mental Capacity Act 2005.
And… formalities? You’ll find these in Section 9 of the Will Act 1837. These are the strict rules that ensure the validity of the Will. Including… how it’s been signed and witnessed. How it was written, the language used, the way changes have been requested. Failure to comply with these ‘formalities’ can leave a Will open to challenge and dispute.
Following the Law Commission research the following significant societal changes relevant to a review of Will Law are:
- the ageing population and the greater incidence of dementia
- the evolution of the medical understanding of disorders, diseases, and conditions that could affect a person’s capacity to make a will
- the emergence of an increasing reliance upon digital technology
- changing patterns of family life, for example, more cohabiting couples and more people having second families, and
- that more people now have sufficient property to make it important to control to whom it passes after their death
Will Law review – take part
The Law Commission public consultation is open until 10th November 2017. Why not share your views and experiences and help bring about positive change in the way write and amend our Wills.
Read more about the Law Commission’s review and download the consultation paper here: https://www.lawcom.gov.uk/project/wills/
Keeping things simple
Here at Future Legal ServicesServices we also believe that writing your Will should be as easy and painless as possible. Which is why we pride ourselves on providing simple and efficient services. No gimmicks, no free pens just relevant advice and exceptional customer service. Our customers are testament to our no-nonsense approach to end of life planning read their reviews here.
So, if you’ve not written your Will yet or have one that needs updating get in touch today on 01322 664885 or email firstname.lastname@example.org and we would be delighted to help.