Do Wills need to change?

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The preparation of Wills is governed by many pieces of legislation, but the primary statute is the Wills Act 1837, which still details the principal requirements for preparing a valid Will.

Time has moved on significantly over the course of the last 180 years and whilst other Acts of Parliament, such as the Trustee Act 1925 and Trustee Act 2000, have updated parts of the legislation, there are many principles that endure from 1837.The Law Commission has began a consultation on significant reforms to this.

Every Private Client lawyer will be able tell you that the formalities of preparing Wills are governed by section 9 of the Wills Act 1837 (as amended from time to time) and the main proposals relate to changing these.The Law Commission proposes that these formalities be removed and that the wishes of a deceased individual, when made clear, will be automatically recognised.

Other proposals being brought forward are:-

1. A new doctrine of testamentary undue influence, together with the related issue of knowledge and approval.

2. The Mental Capacity Act 2005 to be amended to set out a new test for testamentary capacity, superseding the current requirements set out in Banks v Goodfellow

3. Allowing 16 year olds to prepare Wills

4. Recognising electronic Wills, but with sufficient protection against fraud and undue influence.

Whilst there are undoubtedly benefits to updating the present regime, particularly to take into account changes in technology and the understanding of capacity affecting individuals, the changes can only be brought about if there are sufficient safeguards that remain.

For advice on Wills, please contact Richard Horwood, Head of our Private Client team.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.