Wills

Current project status

  • Initiation: Could include discussing scope and terms of reference with lead Government Department
  • Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
  • Consultation: Likely to include consultation events and paper, making provisional proposals for comment
  • Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
  • Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

We launched our public consultation on reforming the law of wills on 13 July 2017. The consultation period closed on 10 November 2017 and we are analysing the responses we have received.

A person’s will is an important document. People use wills to choose how to distribute their possessions and often to express preferences about what happens to their bodies after death.

When someone dies intestate – without leaving a will, or with a will that is not valid – it can cause difficulties for the family, adding to stress at a time of bereavement.

And yet it’s thought that 40% of the adult population don’t have a will. And even when someone has made a will the complexities in the law can sometimes mean strict formality rules aren’t followed and the validity of the will is called into question.

The project

In the latter part of 2013 the Commission undertook a public consultation on the contents of its 12th Programme of Law Reform, to run from summer 2014.

In response to that consultation leading representative legal bodies and others told us where they felt that the law was not working. Consultation responses focused in particular on two main areas of the law of wills: testamentary capacity and formalities.

From early 2016 we researched the law, potential reforms and, importantly, met a broad range of stakeholders to inform the preparation of the consultation paper.

A formal consultation period of four months followed the publication of the consultation paper. During this time we conducted a number of consultation events for different audiences, including the public, legal professionals and academia.

Current law

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 of wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era.

The significant changes relevant to a review of wills law 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.

Our consultation

The Law Commission consulted on proposals, amongst others, to:

  • enable the court to dispense with the formalities for a will where it’s clear what the deceased wanted
  • change 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.
  • make 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 Commission also wants to pave the way for the introduction of electronic wills, to better reflect the modern world.

We also asked the public:

  • what the main barriers they see to people making a will are
  • to tell us about their own experiences of disputes over wills following the death of a loved one
  • whether the rule that marriage revokes a will should be retained or abolished.

 

Documents and downloads

Project details

Area of law

Property, family and trust law

Commissioner

Professor Nicholas Hopkins