TIME, TWILIGHT AND TECHNOLOGY: BRINGING WILLS INTO THE 21ST-CENTURY

Change, it is said, is a constant.

I think that anyone contemplating world events over the last decade would be hard pushed to disagree.

Political flux, bloody conflict, economic uncertainty and technological change have been compounded by the deaths of millions of people during the Covid pandemic.

To those issues can be added a continued rise in property prices across the UK, an ageing population and the share of deaths now accounted for by dementia.

In short, the professional and personal circumstances of many people are radically different from those of a relatively short time ago.

Consider, then, how one piece of legislation governing an important part of our lives has remained unchanged for almost two centuries.

The Wills Act 1837 became law just days after a teenage Queen Victoria ascended to the throne.

It is not surprising, you might think, that the question of reform has been exercising the minds of those who recommend to the Government whether change is needed.

The Law Commission has recently published a series of suggestions for how that might happen, along with draft legislation setting out those alterations (https://lawcom.gov.uk/project/wills/).

Yet it is explicit about the fact that the mere passage of time alone does not warrant its being updated. Instead, says the Commission, an overhaul is overdue in part because of our living longer and what consequence greater longevity has for our mental capacity.

Protecting the intentions of people before and during what was is referred to as ‘the twilight period’ and preventing them being taken advantage of by those seeking to prey upon any cognitive decline is at the heart of the Commission’s 31 new proposals.

They include plans to make the process of determining whether someone has adequate capacity more robust, giving digital wills comparable status with paper documents, reducing the age at which people can make wills from 18-years-old to 16 and scrapping the automatic revocation of a will upon marriage.

The Government has moved swiftly to welcome the project, acknowledging not only that the current law is outdated but that “we must embrace change” (https://www.gov.uk/government/publications/government-response-to-the-law-commission-report-making-a-will).

The Law Commission’s work is born of lengthy investigation and a research and consultation process which originally began eight years ago.

Whilst taking that time might have been a frustration to some, it has arguably been of benefit in certain regards.

For example, in 2017, “the case for allowing wills to be made and stored in electronic form was relatively novel” but events in the intervening years such as the need to work remotely during the pandemic and the continued fast pace of technological evolution have made it far more compelling.

Further credence has been added by the latest data produced by the likes of the Office for National Statistics (ONS), which shows that victims of dementia and Alzheimers disease now account for nearly 12 per cent of deaths in England and Wales (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/bulletins/deathsregistrationsummarytables/2023).

The loss of mental capacity is awful enough without those suffering from the condition can be exploited.

That realisation prompted Daphne Franks to launch a campaign highlighting the threat posed by ‘predatory marriage’ after her mother, Joan Blass, who was diagnosed both with dementia and terminal cancer, was found to have been married without her knowledge only five months before she died (https://www.predatorymarriage.uk/?page_id=31).

We cannot discount either the imperative of enabling wills to be made more effective and easy when we look at research conducted by one leading life insurance company that found more than half of all UK adults do not have one (https://www.canadalife.co.uk/news/over-half-of-uk-adults-do-not-have-a-will/).

With all of those very important factors to weigh up, I think it is natural to want change.

Modern society is very much different from that of previous generations. Wills are an essential part of managing our affairs and anything which makes them easier to draw up is no bad thing.

The Law Commission has, with input from practitioners who deal with many such cases, carefully scrutinised these issues and proposed what it believes to be the most practical way forward.

Even so, I believe that it will be interesting to observe whether and how the Commission’s ideas will themselves be changed if its draft legislation is put through the parliamentary machine.

That may well involve further detail being added in order to further remove the potential for this bill raising more questions than answers.

Some commentators have already indicated that ministers would do well to bear in mind the guidance provided by a piece of case law  – Banks v Goodfellow (https://www.commonlii.org/uk/cases/UKLawRpKQB/1870/74.html) – dating from 1870, just one generation after the current Wills Act took effect.

That clarity is critical because, as figures from the Ministry of Justice have underline, wills are a frequent source of legal conflict.

Last year, the number of contentious probate cases was nearly 74 per cent up on the corresponding amount in 2019 (https://www.gov.uk/government/statistics/civil-justice-statistics-quarterly-october-to-december-2024/guide-to-civil-justice-statistics-quarterly).

The fact that many individuals choose to draw up their own wills is another reason to eradicate the possibility of confusion.

People without legal training often do not anticipate where and how challenges to their wills may arise.

The question of when is usually more obvious but trying to rectify a problem after a testator has died presents its own difficulties.

This has been written by one of our Trainee Solicitor, Foziah Syed Foziah@privateclientsolicitors.co.uk.Please do contact her for any questions or queries that you may have.

ENDS