Recent stats from YouGov show that two thirds of adults in the UK do not have a will. There are many reasons why this is the case; some might feel they are not wealthy enough to need one while others might feel their affairs are so simple that they do not need to set their intentions down in writing. Others might fully intend to write a will, but for one reason or another always put it off for another day.
However, dying intestate can have catastrophic consequences for those left behind. Cohabiting partners and their children may receive nothing or money could find its way to estranged family members who the deceased would not have wanted to provide for.
The way we live our lives now is very different to how people lived in the past. We are living longer, more likely to get divorced, have second families and more people are choosing to live together rather than marry. However, the laws governing how people provide for their families once they have died are rooted in the Victorian era with the bulk of law in England and Wales coming from the Wills Act 1837.
The Law Commission is aiming to bring the process of will writing firmly into the 21st century with its current consultation. It aims to make the process of writing a will easier by exploring various possibilities including the use of so-called “dispensing powers” and even enabling people to make electronic wills.
Key points
- The consequences of dying intestate can be catastrophic for those left behind.
- The will writing procedure must comply with a number of formality requirements.
- The Law Commission is looking to enable the use of electronic wills.
According to law commissioner professor Nick Hopkins, making a will and passing on your possessions after you’ve died should be “straightforward”.
However, he added: “But the law is unclear, outdated and could even be putting people off altogether.”
Procedures
As it currently stands the will writing procedure must comply with a number of formality requirements if it is to be deemed valid – even the smallest deviation from these requirements can result in a will being declared invalid. While these powers exist to protect the testator and ensure their wishes are honoured, they can also have the opposite effect.
For example, under the current legislation wills are set down in writing and must be signed by the person making the will (the testator) in the presence of two witnesses (one in Scotland) who must then also sign the will.
This is to ensure there is independent verification that the will has been signed by the testator and that they were not put under undue influence by anyone else. If at any point in the process one of these parties were to leave the room and not witness one of the signatures then this is enough to render the entire will invalid even if everyone present agrees that what the will contains is an accurate reflection of what the testator wanted.
Thankfully the consultation proposes to “soften the rough edges” of these rules by enabling courts to use dispensing powers to assess whether a document actually represents the wishes of the testator, and recognise a will as being valid even though it might not comply with formality requirements. Such a move seems sensible and would potentially save many families the trauma of unexpectedly having to go through the intestacy process.
