Reform of the law relating to Wills on the agenda again
In 2017 the Law Commission published a wide-ranging consultation reviewing the law relating to Wills and how the law established by a Victorian statute could be modernised for the 21st century. After the initial consultation and responses, the project was put on the back burner so that the Law Commission could concentrate on the law relating to weddings, a project that was itself delayed by the pandemic. The Wills project began again in 2022, and the Law Commission recently published a supplementary consultation.
Why issue a supplementary consultation?
The pandemic highlighted the importance of Wills when everyone felt their mortality a bit more keenly. Practice during the pandemic years adapted to the new circumstances with the introduction of remote video conference execution of Wills. As stated by the Law Commission in 2017 “the case for allowing Wills to be made in electronic form was relatively novel” but during the subsequent six years there have been considerable advances in technology.
The Law Commission states that the position of electronic Wills under the current law is unclear and in their view the formality requirements under the Wills Act 1837 probably preclude the making of electronic Wills. In 2017 consultees “overwhelmingly” agreed with the Law Commission’s proposal that the Wills Act should be amended to confirm that electronic signatures do not fulfil the required formalities of Will making. A bare majority thought that an enabling power that provided for the introduction of fully electronic Wills should not include provision for video Wills.
In general, the use of electronic documents and signatures is becoming much more common, perhaps accelerated by the pandemic. In 2017 a minority of consultees supported the introduction of electronic Wills in due course and there was a wariness about them and the potential risks of fraud and undue influence. The Law Commission is therefore keen to hear whether views have changed with the passage of time and the development of technology.
Revocation of Wills and predatory marriages
Under the terms of the Wills Act a Will is automatically revoked by a subsequent marriage. The original consultation paper did not specifically consider the risks of predatory marriage, where someone marries an often older and vulnerable person for financial reasons. The Law Commission would therefore like to receive evidence about the incidence of predatory marriages and whether because of this the consultees’ views on automatic revocation of Wills have changed.
The consultation period ran until 8 December 2023 and we hope to hear more this year.
