The law in England and Wales that governs wills is mainly derived from the Wills Act 1837. The law that specifies when a person has the capacity to make a will was set out in a case from 1870.
The Law Commission has been consulting the public and stakeholders about the need for the law of wills to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era. The Commission identifies the significant changes relevant to a review of wills law to include:
- 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 and 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.
The Law Commission has been consulting on proposals, amongst others, to:
- enable the court to dispense with the formalities for a will where it’s clear what the deceased wanted;
- changing the test for capacity to make a will to take into account the modern understanding of conditions like dementia;
- provide statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will;
- new rules protecting those making a will from being unduly influenced by another person;
- lower the age for that a will can be made from 18 to 16.
The closing date for responses to the consultation is 10 November 2017, so if you have not already responded then time is running out!
Further details, including the full consultation paper and information on how to submit a response, is available here.