The Law Commission has published their long-awaited consultation into the law of Wills. The report has made radical proposals to reform outdated law from the Victorian era and provide better protection for vulnerable testators. If Parliament enacts the Commission’s suggestions, it will be the biggest change to the Law of Wills in 188 years.
Within the report, a key finding has been the conclusion that s.18 of the Wills Act 1837 should be abolished. This provision provides that marriage revokes a Will – an outdated and little-known provision which we find causes an incentive to abuse the marriage system to gain an interest in a victim’s Estate. The Commission’s report cited the case of Langley v Qin (article) which our team successfully acted in. The Commission also referenced the campaign which Rothley Law has supported led by Daphne Franks of Predatory Marriage UK to stop the abuse of predatory marriage (listen to Daphne’s story here).
Andrew Bishop (partner in our disputed wills and trusts team) welcomed the Commission’s response. The Financial Times (Change English law on wills to protect vulnerable old people, Law Commission urges) quoted Andrew as saying that the changes to s.18 created the “most effective fix” to the issue of predatory marriage and that “it reduces the incentive for abuse and makes cases easier for families to deal with”.
It is now hoped that Parliament will reconsider the issue of predatory marriage. In 2018 a private members’ bill received cross party support but fell away due to lack of parliamentary time.
In addition to the recommendation surrounding predatory marriage, the report consulted on several key issues related to modernising Wills law, including:
- Electronic Wills: The Commission recommended that electronic wills should be valid, provided they meet additional security requirements to prevent fraud and undue influence. Remote witnessing via video call should also be allowed.
- Testamentary Capacity: The Commission concluded that the Mental Capacity Act 2005 test should replace the Banks v Goodfellow test for assessing testamentary capacity, ensuring consistency and clarity. It also recommended a presumption of capacity and a code of practice for assessing capacity.
- Dispensing Power: The Commission recommended introducing a court power to validate wills that fail formal requirements if the testator’s intentions are clear, supporting testamentary freedom.
- Lowering the Age for Making Wills: The Commission recommended lowering the minimum age for making Wills from 18 to 16 and allowing courts to authorise children under 16 to make Wills in exceptional circumstances.
- Rectification: The Commission recommended expanding the court’s power to rectify Wills to include drafting errors, ensuring the testator’s true intentions are reflected.
- Undue Influence: The Commission found that proving undue influence is too difficult under current law. It recommended allowing courts to infer undue influence based on reasonable evidence, shifting the burden of proof to the person defending the Will.
- Gifts to Witnesses and Others: The Commission recommended extending the rule invalidating gifts to witnesses to include their cohabitants and those who sign on the testator’s behalf, with a provision for courts to save such gifts if just and reasonable.
We view these findings as a good step forward to modernise Wills law, enhance clarity, and better protect testators while supporting testamentary freedom.
In the Government’s official response to The Law Commission’s report, they have stated “…the current law is outdated, and we must embrace change…”. It is therefore hoped that reform will be implemented and the Law of Wills brought up to date for the modern century.
