Changes to the legal requirements for Wills

Happily, Max George is recovering, and despite the tabloid headlines, he didn’t claim his digital Will was legally binding. 

 

To date the legal position concerning the requirements for a valid Will remain unchanged. You must have mental capacity to make a Will, which you must sign and have formally witnessed. 

 

However, the Law Commission has been reviewing the position for some time and is due to publish its proposals this month. One recommendation could include more flexible options when there’s clear evidence of someone’s wishes. 

 

The proposals have taken a long time to develop, following an initial consultation in 2017 and further consultation in 2023. These focused on two key areas: 

 

The current laws governing Wills date back to Victorian times. Although updates to the Wills Act and case law reflect modern concerns, do the rules remain fit for purpose? New technology and growing concerns about predatory marriages make these concerns even more relevant. 

 

Electronic Wills. The increasing use of digital signatures and secure online document storage add possibilities for digital Wills. Digital accessibility could mean more people write a Will. This in turn will help to make sure people’s executors can follow their wishes. However, questions remain over the security and lifespan of electronic Wills. 

 

Potentially, Wills must remain accessible for decades. As technology changes so quickly, can an electronic version stand the test of time? In addition, revoking an electronic Will by destruction also needs clarification. Reducing the risks of fraudulent digital Wills and coercion are priorities. However, even traditional methods don’t offer complete protection. 

 

Marriages and partnerships. To minimise the risk of accidentally excluding a husband or wife from inheritance, marriage automatically revokes a Will. However, someone could coerce a vulnerable person into marriage, making any existing Will invalid. The Law Commission’s proposals might add new protections. 

 

Capacity. The Law Commission proposals will probably include new guidance for doctors and other professionals. This will cover how to assess whether someone has the necessary mental capacity to make a Will. It is likely to use the definition of ‘testamentary capacity’ currently included in the Mental Health Act. A clear code of practice will also help people supporting loved ones to make a Will to confirm they have capacity. 

 

We don’t yet know how long the proposed changes could take to implement. In the meantime, it’s important to have a properly prepared, signed and witnessed Will. This will allow your executors to follow your wishes.