The Law Commission has recently published a consultation paper on Wills. The Consultation looks at concerns which have been expressed about the current law, much of which dates from the nineteenth century.
There are suggestions that the current law discourages some people from making Wills, that it is out of step with social, technological and medical developments, and may not give best effect to a person's intentions.
Despite the lurid media headlines, there are no immediate plans to introduce Wills made by text, email or video. Instead, what is proposed is that in exceptional circumstances it would be possible to ask the Court to recognise as a valid Will a document or communication that does not comply with the necessary formalities. Whether or not this will prove useful is debatable. At present, if all parties are adult and in agreement then it is generally possible to implement a deceased's wishes informally without involving the Court.
There is also a proposal for new legislation that would enable digital Wills to be made in future without a specific Act of Parliament to introduce this. Given that the abolition of land certificates and introduction of a fully electronic Land Registry appears to have resulted in an increased opportunity for fraud, full Parliamentary scrutiny when specific proposals have been drawn up would be preferable.
The Commission also looked at how individuals whose mental capacity may be limited or declining can be assisted when making Wills. This is a difficult area and each situation has to be assessed on a case by case basis. It may result in uncomfortable conversations and can, when medical evidence is required, make the Will-making process expensive. Although the proposals may give advisers greater certainty, these practical difficulties cannot be easily overcome.
Whilst it is right that the law is reviewed from time to time and the law should be adapted to take into account changes in circumstances, often the reasons people fail to make a Will are less about how to comply with precise formalities and more about a reluctance to face their own mortality and to make sometimes difficult decisions about how to benefit their families and who should have care of minor children. Changing the law may make the Will-making process more accessible, although care will need to be taken not to widen the scope for abuse. The key to successful Will-making is good support from empathetic professionals who can assist in clarifying the difficult personal choices, underpinning this with good estate tax planning.
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