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Why the law of wills needs a makeover

The Law Commission's recent consultation on wills highlights their impact on high net worth individuals and social equity, write Tom Bradfield and Harry Golding

Earlier this year the Law Commission published a consultation paper on the law surrounding wills and will-making. In it they set out proposals for major reform and requested responses from law firms across the country. The primary legislation in this area was drafted almost 150 years ago and the Law Commission’s proposals are a recognition of the need for modernisation to the law to bring it up to date with the realities of the current times. In particular the Law Commission noted a more widespread affluence among the population (and therefore a greater need for wills to deal with assets), an ageing population with increasing instances of a loss of mental capacity and changing and more complex family lives.

Although there are numerous proposals across the board, they fall into three broad categories: removing or amending the strict formalities required for a valid will, issues surrounding the necessary mental capacity for making a will and the possibility for electronic will making in the future.

Of these it seems that the first two will be of the greatest impact, not least because they contain the most practical and least speculative of the proposals.

As we mentioned above, one of the most eye-catching proposals is to introduce a power to retrospectively validate wills which do not comply with the strict formality rules. This is intended to deal with cases where, for example, the will is signed but not witnessed (and is therefore not valid). However, it could theoretically be used to turn a letter, email or even a casual conversation into a will. High net worth individuals are well known targets for abuse and fraud to do with wills. Common examples include hasty promises to acquaintances who reappear after death to assert their 'rights' and wills forged by third parties. Our view is that, although it has benefits, this power can only increase the risk of claims against the estates of high net worth individuals. We have made this clear to the Law Commission and hope they will ensure the necessary safeguards are in place.

On a more positive note, the Law Commission has made several proposals to improve and modernise the law dealing with the mental capacity required to make a will. The main measures will be to align the relevant test with the Mental Capacity Act 2005 and the introduction of a code of practice for assessing mental capacity. Mental capacity is increasingly relevant to an ageing population of high net worth individuals. It is all too easy, as the case of L’Oreal heiress Francoise Bettencourt has shown, for predatory third parties to take advantage of those affected by the natural process of ageing. As specialists in elderly client law we see such cases frequently. We believe the Law Commission’s proposals will help to protect the position of such vulnerable people.

Tom Bradfield is a solicitor and Harry Golding is a trainee solicitor at Thomson Snell & Passmore LLP, specialising in wills and tax planning