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Law commission consultation on making a Will

The Law Commission’s consultation paper on the law of wills seeks responses by the 10th November. Our Private Wealth team at Irwin Mitchell is preparing a response. If you wish to respond, you have until the 10th November.


The law of wills stems from the Wills Act 1837, and much of the case law from the nineteenth century. The law needs modernisation to take account of the changes in society, technology and medical practice since then.

The consultation encompasses numerous issues. Some are simple, such as whether to change the word “testator” to “will maker”, while others are complex, for example whether to allow electronic wills. It recognises the number of wills that are challenged for lack of testamentary capacity, lack of knowledge and approval and undue influence; and the need to protect vulnerable testators - our concern if there were authorisation of electronic wills.

Given changing patterns of family life, with more cohabiting couples and second families plus increased property values, there is growing likelihood of disputes and greater numbers of challenges to the validity of wills. One consultation question looks at the experiences and impact, financial or otherwise, of the preparation, drafting and execution of wills and disputes over wills.


It is proposed that rather than using the common law test set out in a nineteenth century case, the test for mental capacity set out in the Mental Capacity Act 2005 should be adopted as the test for testamentary capacity with specific elements needed to make a will outlined in a code of practice. If that is not followed, it is recommended that the case law capacity test should be put into a statutory version, with a statutory presumption of capacity and a code of practice as to how testamentary capacity should be assessed.

Knowledge and approval, and undue influence

Vulnerable testators may be subject to undue influence or the will’s contents may raise suspicions that it might not represent the testator’s true intentions. At present where suspicion is raised, the court needs proof from the person seeking to uphold the will that the testator did know and approve the will’s contents.

The Law Commission notes the law must provide adequate protection to vulnerable testators by ensuring wills that do not reflect the testator’s free wishes can be challenged but must not encourage speculative or spurious claims by disappointed beneficiaries. It recommends a statutory doctrine of testamentary undue influence and asks for views on the form it should take. It proposes requirements in relation to “knowledge and approval” confining it to determining the testator knows he or she is making a will, knows the will’s terms and intends those terms are incorporated and given effect in the will.

Supported Will Making

This proposes a scheme to help testators who could have capacity to make a will if they were provided with support to do so, asking whether the approach to testamentary capacity is compatible with the UN Disability Convention and the right of those with disabilities to enjoy legal capacity in the same way as all other people. The consultation asks what the scheme should comprise to provide sufficient safeguards.


Currently the age of testamentary capacity is 18. Some 17-year-olds have left school, live alone, have jobs and parental responsibility, but cannot make a valid will. The consultation proposes that the age be reduced to 16. It looks at other situations e.g. where the age of consent to make decisions about medical treatment is blurred and asks whether, where children have sufficient understanding and intelligence courts should have power to authorise children even below that age to make wills.


Ademption is where a testator makes a gift by will of property that’s no longer owned at the time of death so the gift fails. The consultation suggests new rules to mitigate the effect of the doctrine:

  • An act by an attorney, where the testator lacks testamentary capacity at the time of disposal of the asset, should not adeem a gift by will.
  • A specific gift in a will should not adeem where at the time of the death the transaction to sell the asset is not completed or there is an option to purchase - the beneficiary should inherit the proceeds of sale of that asset.


While no reform of the general law is required evidence is sought of public awareness of the rule that marriage revokes a will and asks whether that should be abolished or retained.

Margaret Windram in our Will, Trust and Estate Disputes team, shared her expert opinion on the matter. “While it includes controversial proposals, like the possibility that one day emails might be admissible as evidence of the intention for a will, there are many sensible and constructive proposals in the consultation. If you wish to make your voice heard, do put in your views by 10 November.”

For those requiring more clarity on these changes please give our expert Will, Trust and Estate Disputes team a call.

Published: 25 October 2017

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October 2017

Key Contact

Margaret Windram