With nearly a half of British adults not having a will in place, it is high time to change outdated inheritance rules to add greater flexibility to will-making, Hannah Blakey
It is estimated that 40 per cent of the adult population in the UK have not put in place a will.
In a consultation published earlier this year and closing next month, the government’s legal adviser, the Law Commission, has argued that this shocking statistic could be a result of the ‘unclear’ and ‘outdated’ inheritance laws currently in place. The Law Commission has argued that a radical overhaul of inheritance law is required to bring the law into step with the modern, digital age and remove obstacles that may otherwise deter the general population from making a will.
Under the current laws, which date back to the Victorian era, wills must be made in writing and signed by the ‘testator’ in the presence of two independent witnesses who must then sign themselves in order for the will to be valid. The Law Commission has proposed that the court be given greater flexibility to uphold wills which do not meet these strict legal requirements where it is clear what the deceased intended. For example, it is proposed that notes, emails, voicemail messages and even audio-visual recordings could be used in place of a written will where, 'on the balance of probabilities', the records were deemed an accurate summary of a person’s wishes.
Changes of heart occurring days before death could even be recorded and used to overrule an existing, valid will.
The increased flexibility such a change in the law would create could be a positive step, particularly in situations where, for medical reasons, an individual may be more able to speak than to write.
However, such increased flexibility could also add to family disputes, as possible beneficiaries delve into their relative’s emails, text messages and other correspondence for evidence of a change of wishes. Further, without the protective ‘check and balance’ of having two independent witnesses present, vulnerable testators may be more easily manipulated into making a will that is not an accurate reflection of their wishes.
It is undeniable that when someone dies intestate, it can cause difficulties for those they leave behind. Without a valid will in place, there is no guarantee that an individual’s estate will be distributed as intended, which can cause stress and suffering at a time which would otherwise be reserved for grieving. To this extent, the Law Commission’s desire to remove barriers that may deter individuals from putting their affairs in order seems commendable.
However, this wish must be balanced against overriding obligations to protect the vulnerable and uphold the significance of a will. An individual’s will is often one of the most important documents they will sign. The current formalities reflect this significance. Although the current Victorian-era laws require certain hoops to be jumped through, they also provide certainty, allowing an individual to rest easy knowing their affairs are properly in order. With this in mind, the Law Commission may wish to consider other methods of encouraging the population to put in place wills rather than fixing something which perhaps isn’t broken.
Hannah Blakey works at boutique private wealth law firm Maurice Turnor Gardner LLP.