How up to date is your Will?

July 2017            No: 1

The Law Commission has recently published a consultation to review the laws governing the making of wills.

The current law dates back to the Wills Act of 1837 and, given that an estimated 40% of the adult population will die without having made a will, the consultation is considering whether the law can be modernised and improved in order to encourage more people to take steps to put their affairs in order.

Some of the main points the consultation considers is whether there can be greater flexibility in the formal requirements for the execution of wills, introducing electronic wills and reducing the age at which someone can make a will from 18 to 16.

Although to some, this may seem like a welcome change, if we take a quick look at how the Wills Act of 1837 came in to being, everything may not be as its seems.

Historically, many rules had existed which allowed people to dispose of different types of assets but the first time a person could gift property (in the sense of bricks and mortar) was the Statue of Frauds in 1677.  These many and varying rules were reviewed by the Commissioners for Inquiring into the Law of Real Property in the early nineteenth century and their conclusion was that “any scrap of paper or memorandum in ink or pencil, mentioning an intended disposition of his property, is admitted as a will and will be valid, although written by another person and not read over to the testator, or even seen by him, if proved to be made in his lifetime according to his instructions”.

As a result, the Wills Act of 1837 came in to being with the aim of simplifying and streamlining all the rules governing gifts of varying types of property on death.

Although the governing law may be elderly it does not necessarily mean that it is broken and therefore, does it need fixing?  Are we trying to streamline the streamlined?

When a will is made through a solicitor, the solicitor will not only be listening to your instructions, they may also be making suggestions as to possible circumstances that you had not considered, in order that substitute provisions can be put in the will to “safeguard the future”.  Although they may not directly tell you what they are doing, they will be carrying out an assessment to ensure that you have the requisite capacity to make a will and they may also be ensuring that what you are saying to them is a true representation of your wishes and not the end result of constant nagging by one child or coaching by another.  All of these may result in a will being declared invalid.

It may seem archaic and Victorianesque but the formalities exist for a reason.  How often have purchases been made on-line, late at night after a bottle of wine has been consumed only to be regretted the next day?  How often do we hear about bank accounts being emptied without any knowledge by the account holder until the bank rings?  If technology is already at the forefront of misuse and abuse, why make it easier for families to fall out of the final distribution of their loved ones assets?

So, with the Wills Act itself being reviewed, is it time to review your own will to ensure that it too is not elderly and out of date?

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