An update to the Wills Act 1837

Aims of the consultation

The consultation aims to bring the legislation from 1837 up to date. The Law Commission has identified two areas of the current legislation which require reform:

1. The use of electronic wills
2. How marriage or civil partnership can revoke a person’s will

Let’s take a look at the current position and why these changes are being proposed.

Making a will – the current position

A will is an important legal document which determines how your assets are dealt with following your death and who benefits from your estate. It's estimated that 40% of the adult population of England and Wales do not have a will in place, meaning that those adults have no control over the eventual destination of their wealth.

In order to make a valid will, the document must comply with the provisions of the Wills Act 1837. A physical version of the will must be signed in the presence of two witnesses, with both witnesses also signing the will. The physical will must be preserved and, depending on a person’s assets, the will is often required to be physically presented to the Probate Registry.

The Law Commission query whether the formality of physically signing and storing a will is one of the barriers preventing or dissuading some adults in this jurisdiction from making a will.

Making a will – the proposed changes

The Law Commission are exploring views on whether it should be made possible to make and sign a will electronically (by use of an electronic signature) and, furthermore, whether such electronically signed wills should be permitted to be stored electronically, as opposed to in hard copy.

Our use of technology with legally binding documents has taken a big leap forward over the past few years, and it’s often possible to sign documents, such as contracts, electronically. Should the same use of technology be extended to making a will?

It’s hoped that the use of electronic signatures and the electronic storage will bring private client law up to date and make wills more accessible to a larger number of the adult population of England and Wales.

For practicing private client lawyers, the use of electronic signatures could provide a welcomed step in the finalisation of a person’s will. However, thought needs to be given to those making a will without the use of a legal professional and how those who may be potentially vulnerable to undue influence, undue pressure or fraud can be protected. It also needs to be possible to authenticate a person’s signature, so it’s known that the person making the will understood and approved the contents of the document, and then applied their own signature themselves.

When it comes to the electronic storage of documents, this presents a different set of more practical issues that need to be resolved. Particularly, if a person makes a will without the assistance of a legal professional. How would the existence of the will be known? How would the person’s executors access an electronic will stored on a personal computer? How can the terms of a person’s will be put into effect if it cannot be accessed? Would some form of official registration of the will be required?

The consultation needs to review how these potential issues can be resolved in order to determine whether it is sensible for the government to enact the proposed reforms and if so, how these reforms should take place.

Marriage and wills – the current position

When a person has made a will, there are certain actions that can revoke (meaning cancel) that will. One of these actions is entering into a marriage or civil partnership.

The Law Commission has taken on board serious concerns that have been raised about the revocation of a person’s will when entering a marriage or civil partnership. Unless otherwise provided for in a person’s will, the will is cancelled as from the date of their marriage or civil partnership. Therefore, leaving the person’s estate to be dealt with by the intestacy rules, unless a new will is made (the intestacy rules set out how a person’s estate is to be distributed when there is no valid will in place, directing assets to a spouse and direct relations, in a particular order). This results in a change to the distribution of a person’s assets following their death and means that some of their intended beneficiaries miss out.

This issue can be overcome for many couples by making a new will in contemplation of marriage or by making a new will shortly after their marriage.

However, this is often not an option for the more vulnerable members of our society, such as those who are elderly or perhaps lack mental capacity. A predatory marriage, whereby someone marries a vulnerable adult in order to inherit from their estate, is a form of financial abuse which needs to be addressed. This type of abuse does not only harm the vulnerable person involved, but also their families and those who are dependent on them. There are also concerns that a person’s charitable intent will be set aside by the marriage, which is a concern for charities who often receive up to a third of their funding through wills.

Marriage and wills – the proposed changes

The Law Commission need to better understand how and when predatory marriages occur to propose appropriate legislative changes and are therefore looking into this further. Current ideas include updating the test for mental capacity when making a will and providing a code of practice to guide the courts and professionals as to how a person’s capacity can be assessed.

We’re looking forward to a discussion that will take place on this topic so that we can move towards tackling this form of abuse.

Expressing your views

The Law Commission welcomes comments in relation to these two areas of reform.

You can make your views known by using the online form (Law Commission supplementary consultation on wills - Ministry of Justice - Citizen Space) or emailing [email protected].