Later LifeJul 13 2017

Law Commission consults on voicemail wills

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Law Commission consults on voicemail wills

The independent body say that Victorian laws, out of step with the modern world, are failing to protect the vulnerable – and not allowing others to distribute their cherished possessions after they’ve gone.

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.

With an estimated 40 per cent of adults dying each year without a will, it’s also thought that the laws could be putting people off writing one.  That means there is no guarantee that estates are distributed as the deceased intended.

As a result, the Law Commission is consulting on proposals to soften the strict formality rules, a new mental capacity test which takes into account the modern understanding of conditions like dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.

The Commission also wants to pave the way for the introduction of electronic wills, to better reflect the modern world.

Law Commissioner Professor Nick Hopkins said: “Making a will and passing on your possessions after you’ve died should be straight-forward. But the law is unclear, outdated and could even be putting people off altogether.

“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.

“That’s not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”

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

Certain procedures must be followed in order for a will to be valid. But if the formal rules aren’t followed –even when it’s clear what someone’s intentions were – people’s dying wishes aren’t acted on.

Wills are also only valid if the person writing it understands what they are doing – however the law uses a Victorian test which takes no account of modern medical understanding.

It focuses on “delusions” of the mind; doesn’t reflect the understanding of conditions like dementia where mental capacity can be changeable; and differs from the modern test for capacity in other areas of decision-making – the Mental Capacity Act 2005.

Many people might also not be aware of some of the law of wills. For instance, when someone gets married that process revokes any previous wills.  So if someone had made specific provisions in their will – to support children from a previous marriage for example – these would be ignored and the new spouse would receive the bulk of the estate.

In its consultation the Law Commission also asks the public what the main barriers they see to people making a will and to tell it about their own experiences of disputes over wills following the death of a loved one.  The paper also asks whether the rule that marriage revokes a will should be retained or abolished.

Commenting on the announcement, James Antoniou, head of wills for the Co-op, warned about any watering down of current rules.

"Making the law more accessible is one of today's biggest challenges facing the legal industry.

"However, at the moment, the laws about what makes a will legally valid are strict and clear.

"So any relaxation of these rules, by giving the courts power to recognise other types of communication, creates uncertainty which could lead to a greater number of legal disputes and ultimately with families suffering the associated legal costs."

The Co-op has been championing the need to make will writing more accessible by launching their online will service last year to the general public.

This allows people to start making their will online 24 hours a day, 7 days a week and then have a follow-up telephone call with a wills specialist to discuss their circumstances before it is put in place.

Once the will has been signed, Co-op can check the will to ensure that it has been executed correctly and also offers free lifetime storage.

Fiona Tait, technical director, Intelligent Pensions welcomed the Law Commissions proposals.

"It should be possible in this day and age for people to make their wishes clear in a way that is legally valid and not too onerous.

"Electronic wills would certainly improve existing access and make it easier for people not only to set up a will in the first place but to ensure it kept up to date as circumstances change.

"People are living  longer and it is increasingly likely that they will have to make more than one will over the course of their lives."

Alan Lakey, director Highclere Financial Services, also backed the plans.

"These are important improvements which will assist in moving will making from the musty old world of quill pens into the modern age. Too many people leave their affairs in disarray to the advantage of others including HMRC."

Malcolm McLean, senior consultant at Barnett Waddingham, the industry needs to encourage people to make a will, "and not put them off by undue formalities and rigid rules".

However he added: "I'm not sure about voicemail and texts though. That may be going too far and could be risky."

The public consultation on wills runs until 10 November 2017.