Reforming the Law of Wills

The Government has announced that it will not be extending the legislation to permit virtual witnessing of wills.

The measure to allow remote witnessing was originally introduced in September 2020, during the Covid-19 lockdowns, and then extended for a further two years in February 2022.

The temporary legislation enabled two independent people to witness the testator signing their will by video link, as opposed to the normal requirement of in person.

The pandemic was the catalyst that necessitated an amendment to the Wills Act 1837. The circumstances that prompted the temporary legislation may have been exceptional, but the amendment instigates a wider discussion on the Wills Act itself.

Are its rules, which are largely a product of the Victorian era, fit for purpose in today’s modern age?

Whether or not the Wills Act is still a suitable directive is a question that is gaining increasing momentum and one that is addressed within the Law Commission’s Consultation on Making a Will.

Law Commission Consultation on Making a Will

The Law Commission first consulted on reforming the law of wills in 2017, with a supplementary consultation paper published in October 2023.

The supplementary paper is a re-consultation on two key areas of possible reform

• Enabling electronic wills; and
• The rule that a marriage or civil partnership revokes a will.

The supplementary consultation closed on 8 December 2023 and the Law Commission are currently analysing responses and developing their recommendations for reform.

A re-consultation of electronic wills and the rules around marriage and civil partnership were deemed necessary as it was these topics that had been most impacted by changes in our society and technological advancements.

Electronic wills

The supplementary paper examines whether an electronic version of a will would adequately cater for the formal requirements that a will necessitates.

Key issues explored include

• Whether, and how, it should be possible for wills to be executed or made using electronic means, and if so;
• Whether those wills should be able to be stored and admitted to probate solely as electronic documents.

There is a degree of uncertainty that electronic wills could satisfy the formal requirements of a valid will. As the consultation highlights, wills are unique and operate in a very different way to other contractual or transactional documents, where electronic versions are now commonplace.

Should an electronic version become permissible, there would need to be customised and very clear guidelines to how they are introduced.

The consultation asks some very pertinent questions including how and when bespoke requirements for electronic wills should be introduced.

• Should a new Wills Act provide that electronic wills are valid, with any detailed requirements (including any technological specifications) set out in separate secondary legislation? Or;
• Should a new Wills Act do no more than contain an enabling power, which could allow electronic wills to be recognised as valid in the future?

Revocation by marriage or civil partnership

The Wills Act currently dictates that a will can be revoked by a subsequent marriage or civil partnership.

Where a will is revoked by marriage, and in the absence of a new will, the intestacy rules apply

• The person’s spouse or civil partner is likely to receive the majority of their estate, if not their entire estate; and
• They have the authority to make funeral arrangements.

In light of increasing concerns over ‘predatory marriages’, where a marriage is motivated by financial gain, the consultation explores whether marriage or civil partnership should continue to revoke a will. The Law Commission also considers the potentially damaging impacts of abolishing this legislation – leaving genuine spouses or civil partners without any protection from the intestacy rules.

How M+A Partners can help

We await the Law Commission’s final recommendations for reforming the law of wills with interest.

There are some difficult decisions to be made, and increasing pressure to ensure any new legislation is fit for today’s complex needs, whilst also upholding the formal and substantial validity of a will.

Should you require further information on our will writing services, or would like to ensure your estate is dealt with according to your wishes, please get in touch with our experts or email enquiries@mapartners.co.uk