Current project status
The current status of this project is: Consultation.
List of project stages:
- Analysis of responses
- 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
Our public consultation is open until 10 November. The full consultation can be downloaded at the bottom of this page. We welcome views.
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.
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.
Since early 2016 we have been researching the law, potential reforms and, importantly, meeting a broad range of stakeholders to inform the preparation of the consultation paper.
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.
The Law Commission is consulting on proposals, amongst others, to:
- enabling 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 Commission also wants to pave the way for the introduction of electronic wills, to better reflect the modern world.
We also ask 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.
How to respond
The consultation paper can be downloaded below.
Questions can be found on page 246 of the consultation paper.
Not all consultation responses have to answer every question. We welcome views from medical professionals on our plans on mental capacity and the general public on questions around their experiences of making a will.
Responses can be made:
(1) by email, to email@example.com; and
(2) by post, to Damien Bruneau, Law Commission, 1st Floor, Tower, Post Point 1.53, 52 Queen Anne’s Gate, London, SW1H 9AG.
Area of law
Property, family and trust law
Professor Nicholas Hopkins