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The law in England and Wales that governs wills is mainly derived from the Wills Act 1837.

The Law Commission has said that the Victorian laws are failing to protect the vulnerable and should be updated and brought into the “modern world”.

The commission has launched a consultation on the proposals.

Current Regime

Currently, for a will to be legally valid it must be voluntarily written by someone who is 18 or over and of sound mind. It also has to be signed in front of two witnesses who are also both over 18.

The commission wants to change the existing rules where it is clear the will maker has set out their intentions in another form.

New Proposals

Law Commissioner, Professor Nick Hopkins, said making a will should be “straightforward” but the current law was “unclear and outdated”.

“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it.”

As a result, in a new consultation paper, the Law Commission proposes:

  • Giving the court power to recognise a will in cases where the formality rules haven’t been followed but the will-maker has made clear their intentions
  • An overhaul of the rules protecting those making a will from being unduly influenced by another person
  • Lowering the age at which people are able to make a will from 18 to 16 years old
  • Applying the test of capacity in the Mental Capacity Act 2005
  • Providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will
  • Giving the Lord Chancellor power to make provisions for electronic wills

Professor Nick Hopkins added: “Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”

DTM Legal Trusts and Estates Associate, Amanda Bailey, says: “There is a careful line to be drawn between modernising the current system and ensuring safeguards remain in place.

“Many people put off making a will because of the legal processes involved so anything which encourages people to record their wishes is a good thing. However, the whole rationale of requiring two witnesses to a will is to protect against forgery and undue influence.

“It will be interesting to see what the proposals will be for electronic wills while protecting the system from abuse.”

The consultation closes on the 10th November.

With a transparent, proactive and efficient approach, DTM Legal take the time to understand your individual circumstances and provide advice that is tailored to your needs.

Contact Amanda Bailey on 01244 345805 or e-mail amanda.bailey@dtmlegal.com for a free, no obligation review of your wills and affairs.

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