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Law Commission Consultation To Overhaul Wills

Irwin Mitchell Private Wealth Say Discussions On More Protection For Vulnerable Welcome

The Law Commission launched a consultation last month aimed at bringing Wills into line with modern society, Irwin Mitchell Private Wealth considers the key points that will need to be addressed.

The Commission says that Wills laws rely on Victorian mental capacity test which is outdated and plans to overhaul the rules on capacity to take account of conditions such as the rise in dementia.

Other proposals include giving the courts more discretion to decide what the wishes of a deceased person were in relation to their assets, even if their will is not technically valid but it is clear what their intentions were.

The plans will also pave the way for electronic wills to be introduced at a later date and seek to lower the minimum age from 18 to 16.

An estimated 40% of adults die every year without having made a will.

Gillian Coverley, a specialist Wills and Probate Partner at Irwin Mitchell Private Wealth, said: “The Consultation seeks to bring Wills into line with modern society asking questions about digital /electronic Wills and taking into account the rise in dementia and issues about mental capacity. With modern families becoming more complicated over recent decades wills have become even more important and it’s vital that the rules are fair for everyone and protect vulnerable people from potential financial abuse.

“It asks 65 questions on detailed proposals for change, and those interested in the subject must respond by 10 November 2017, but detailed consideration of the report is needed to understand many of the questions. This includes the major issue of the capacity to make a will, which still refers back to a court case in 1869, almost 150 years ago, and does not take into account the major changes in the Mental Capacity Act 2005.

“It will be important to consider the detail of these proposals, and any legislation that is then proposed to introduce changes, as to how these plans might be introduced. Under the proposals, the courts may be given more freedom to make decisions on assets if the wishes of those making a will are clear – but setting these boundaries and definitions may involve a series of precedent setting cases over a few years before we get to a true understanding of how the laws will be applied.

“There are also some concerns with digital signatures and how safe they may be from cyber-crime and abuse within families. Any systems will need to be built with protecting vulnerable people in mind. Questions are also raised about “Digital Assets” and feedback welcomed on any issues in the extensive digital world. This area is moving so fast it is difficult for the law to keep up, but an attempt needs to be made.”

The consultation is open until 10 November this year.

Published: 15 August 2017

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August 2017

Key Contact

Gillian Coverley