Will we really be making Wills by text message?

Wills by text message

Following the publication last month of a consultation document by the Law Society, many newspapers ran with sensationalist headlines suggesting we may all be making Wills by text or WhatsApp in the near future.

It should perhaps come as no surprise that the Law Commission did not suggest in their Consultation that a quick text from your Gran could constitute a valid Will. So what exactly is on the cards and why the need for change?

The Consultation invites responses on 65 different topics that relate to the making Wills. These incorporate a number of proposals from the Commission, including the following:

The term ‘testator’ should be replaced with something else.

A person who makes a Will is called a ‘testator’ or ‘testatrix’.

The Commission’s concern is that these are old terms that people may find strange or off-putting. However, it is also suggested that ‘Will Maker’ could be confusing (referring perhaps to the person who drafts the Will).

The test for ‘mental capacity’ should be changed.

A person can only make a Will if they have ‘mental capacity’ (or ‘testamentary capacity’, as it is known in this case).

The current test is set out in Banks v Goodfellow 1870. However, legislation already sets out a test of testamentary capacity in the Mental Capacity Act 2005 which is not used in relation to Wills. This could be adopted.

Alternatively, the test in Banks v Goodfellow could be incorporated in legislation. The test has four elements and some clarification of how each part is to be interpreted would be needed. The Commission has also suggested that if this option is chosen, a ‘statutory presumption of capacity’ should be introduced. This would mean it would be presumed that every testator had the required mental capacity to make a Will at the time the Will was executed. The simple fact that a person had a particular medical condition (such as dementia) would not be absolute evidence that they lacked capacity – other evidence would be required.

The rule in ‘Parker v Felgate’ should be retained.

There is a general rule that the person making a Will must have testamentary capacity at the time he or she executes the Will (i.e. signs it in front of witnesses).

However, the case of ‘Parker v Felgate’ creates an exception.

If the person making the Will gives instructions to their solicitor and then loses mental capacity before signing the Will, provided that the document gives effect to their wishes, they only need to understand at the time of signing that they are executing the Will which contains their earlier instructions. They do not at this stage need to have the same complete knowledge and understanding that they had when giving the instructions.

The Law Commission has proposed that this rule should not change.

A code of practice should be produced with guidance on testamentary capacity.

Elderly person - assessing capacity

A code of practice would bring consistency to tests for mental capacity.

Currently if there is any doubt that the person making the Will has the required ‘testamentary capacity’, an assessment will be made. This could be made by the lawyer who is taking instructions, or by the person’s GP. Alternatively it could be made by a specialist company who provides assessments for a fee. There is no guidance on what questions should be asked or which tests should be performed. Consequently, tests are inconsistent and may be open to challenge. A code of practice would ensure that an appropriate person is chosen to perform the assessment, and the assessment is performed in a consistent and thorough manner.

The Law Commission does not believe there is a necessity for a scheme to be enacted allowing testators to have their capacity certified by a third party – although such organisations do already exist.

There should be no changes to the current Statutory Wills practice.

Currently if someone does not make a Will and goes on to lose the mental capacity required to do so, that person’s friends or relatives may apply to the Court for a Statutory Will to be made. The Will reflects what the Court believes to be in that person’s best interests. In deciding the contents of the Will, the Court considers who would benefit if the person were to die intestate (i.e. without the Will being made).

The Commission has not proposed any changes to the current practice or rules, although it has invited respondents to suggest reforms that might reduce the cost and length of proceedings.

A supported Will-making scheme should be considered.

The Commission has asked respondents to comment on whether a supported Will-making scheme is desirable or practical.

The Commission believes such a scheme could be especially useful where a person’s mental capacity (or lack of) is not yet clear.

The question then arises as to who should be a supporter. Although friends or family may know the person well and may be trusted, there is a very clear concern that the person may be unduly influenced by their views.

Alternatively professionals with appropriate training (such as Independent Mental Capacity Advocates – IMCAs, or Care Advocates) could act as supporters, but who should bear the cost is then a consideration. Currently IMCAs and Care Advocates are funded by Local Authorities.

The degree of formality required to make a Will should be considered.

The Commission acknowledges that there is a need to balance competing objectives. On the one hand, formalities represent a barrier to people writing wills. A person’s wishes may be defeated because he or she has not executed a document in the correct form, since a will that does not comply with formality requirements is invalid. The person’s estate then passes on intestacy rules which is not what they would have wanted.

On the other hand, if the formality requirements were relaxed, there is a risk of wills being accepted as valid that do not represent the person’s wishes – perhaps because they have been forged or the person was unduly influenced.

The Commission has also invited people to comment on other barriers are stopping people making Wills – given that so few people have this essential document in place.

If one person signs a Will on behalf of another, they should not be able to benefit.

Currently a person can validly execute their will by directing another person to sign it on their behalf.

Oddly, while the law (Section 15 of the Wills Act 1837) prevents witnesses from benefiting under the Will, the person signing can still benefit.

Per Lord Justice Lewison:

it is plainly undesirable that beneficiaries should be permitted to execute a will in their own favour in any capacity.

Source: Barrett v Bem [2012] EWCA Civ 52; [2012] Ch. 573 at [144].

The Commission suggests this restriction should apply to those closely connected to the person signing on behalf of another (such as their spouse, civil partner or cohabitee). Similarly the cohabitee of a witness should not be able to benefit.

The Commission has invited respondents to comment on who else should be restricted from benefiting – such as the parent or sibling of a witness.

Additionally the Commission has asked respondents to consider whether there should be circumstances where a gift to one of these persons that would otherwise be void could be saved. This might be for example if the would-be recipient of the gift could prove the person making the Will knew and approved of the gift. However, it is suggested that this could weaken any protection offered by restricting witnesses and those executing Wills on another’s behalf from benefiting.

‘Holograph’ Wills should continue not to be recognised.

A holograph Will is one written entirely by hand and signed, without a witness. These are recognised in other jurisdictions but the Commission does not believe these should be acknowledged in English Law. Although this type of Will is advantageous in requiring less formality, removing the requirement for witnesses weakens the protection offered by those formalities. Additionally, if someone can make a Will simply by writing and signing a document, the person may not even realise they have made a Will.

Privileged Wills should be retained.

Privileged Wills may be made by someone in the armed forces. They are exempt from the requirements of the Wills Act. A privileged Will might be highly informal – it could, for example, be made orally. The justification for this is that those undertaking military service may find themselves in a situation of imminent danger and may not have time to make a validly executed Will in such circumstances.

Courts should be able to consider alternative sources to demonstrate a person’s wishes.

This suggestion is perhaps the most controversial proposal in the Consultation Paper and has attracted the most attention. The Commission propose that a Court might have regard to a wide range of sources when determining a person’s testamentary intention (i.e. where they wanted their property to go). This might include electronic documents such as emails, text messages, chat messages, sound recordings and video recordings.

The Court would consider the case based on the civil standard of proof – that is, the ‘balance of probabilities’. This means the Court makes a decision based on what is most likely.

There is no need for a system of compulsory registration of Wills.

Currently there are systems that allow those who have made a Will to voluntarily register this fact with an organisation. The Commission believed that consideration of whether a compulsory system of registration was necessary was beyond the scope of their review.

Electronically executed Wills should be recognised as valid.

Will-writing organisations already use technology to prepare hard copy Wills – and permitting electronically executed Wills seems like the next logical step. However, a careful consideration would be required as to the methods of electronically authenticating documents to ensure that the ‘signature’ was authentic. The Commission has invited respondents to comment on the  security  and  infrastructure  requirements that would be necessary  for  using  electronic signatures in the will-making context.

An additional consideration is how the Will would be revoked – currently this is done simply by destruction but this could be more complex in the case of an electronic Will, given that there would not be a single original copy of the Will.

Video Wills could be recognised.

Video wills

Video Wills could be recognised.

The Commission has invited views on whether video Wills should be recognised. On one hand a video recording could provide useful evidence that the person making the Will had the required mental capacity and was not subject to any undue influence. On the other hand, Wills use very precise language and if a person spoke their wishes, their words could be open to interpretation. There is also the possibility that a video Will could be tampered with, and the question of how it would be stored.

The general doctrine of ‘undue influence’ should not apply to Wills cases.

If someone makes a gift during their lifetime, the Court may consider whether they have been unduly influenced by another in making the gift. In some circumstances it is presumed that they have indeed been unduly influenced. This general doctrine of undue influence arises where (1) there is proof of a relationship of influence (such as where the gift is made by a child to a parent or by a follower to a spiritual advisor) and (2) there is a transaction calling for explanation.

Where a person gives away assets in their Will and someone wants to challenge those gifts on the basis of undue influence, no such presumptions are made – the challenger must prove the undue influence. The proof must show that that there is no other possible explanation for what occurred other than undue influence. Because there are no presumptions and the standard of proof required to establish that coercion took place is so high, those claiming undue influence in relation to a Will often fail because of insufficient evidence.

If the general doctrine which applies to lifetime gifts is also applied to Wills cases, this could threaten the doctrine of testamentary freedom (i.e the idea that people can leave their property to whoever they choose). A disgruntled child could bring a claim just because they were less favoured than another child, on the basis that this was a ‘transaction calling for an explanation’.

However, the Commission believe that while the general doctrine (applying to lifetime gifts) is too broad, the current law is also too narrow, making it difficult for genuine claims of undue influence to succeed. They have proposed a new doctrine of undue influence be introduced into the law to apply specifically to Wills cases.

The minimum age for making a Will should be reduced from 18 to 16.

16 years olds are regarded as old enough to make decisions involving their medical care and social welfare – so the concept that a 16 year old cannot decide what happens to their property is perhaps bizarre.  The Commission regard decisions about property and the disposal of one’s body as more akin to medical and social welfare decisions than they are to political, behavioural or purchasing decisions (such as voting or entering into a contract, where the minimum age is 18).

Sections 23 – 31 of the Wills Act should be updated/removed.

Sections 23 – 29 contain outdated language that should be revised. However, the Commission propose that whilst the language should be modernised, the effect of the sections should not change unless a particular provision is no longer used.

However, Sections 30 and 31 are not used and should be repealed.

Disposal of property by an attorney should not result in a gift failing.

If a person loses mental capacity and an attorney begins to act on their behalf, it is possible that property they have gifted in their Will could be sold.

The usual position is that a gift in a Will fails when the property that is the subject a specific gift is destroyed, lost or lawfully changes hands by the time of the person’s death.

This  can frustrate the intentions of the person who made the Will. A good example can be found in Banks v National Westminster Bank Plc & Another. The testator’s daughter became the
testator’s attorney and sold her mother’s house during the mother’s lifetime. However, the mother had left the house as a specific gift to her daughter in her Will, with the rest of her property to be divided equally between the daughter and her brother. The daughter argued that she should be entitled to the remaining proceeds of sale of the house but the Court rejected this arguement. The gift of the house failed and instead the sale proceeds together with the rest of the mother’s property were split equally between the daughter and her brother. This was not the mother’s intention.

The Commission has proposed that if an attorney disposes of property on behalf of a person, this does not cause a gift in the person’s Will to fail. Similarly, where a gift is no longer in their estate due to circumstances beyond their control, the gift should not fail.

Additionally, where the gift is of shares in a company, this should not fail where the gift has changed form due to dealings of the Company (unless there is evidence that the person who made the Will had some other intention). An example might be if Company X took over Company Y and shareholders of the no-longer-existent Company Y were issued with shares in Company X.

A gift should not fail if the property is destroyed at the same time as the person’s death.

Currently the law says that if a person dies and at the same time, a gift that they left in their Will is destroyed (where the order of events is uncertain) there is a presumption that the gift was destroyed before the person died. As a result the gift fails. This does not give effect to the person’s wishes and the Commission has proposed that instead, the beneficiary should be entitled to the value of the gift.

The law on revoking a Will (so it is no longer valid) should not change.

Currently a person can revoke their Will (so it is no longer valid) by intentionally destroying it (provided that they have mental capacity at the time of destruction).

Alternatively they can make another Will which expressly states the previous Will has been revoked.

A final option is to make a written declaration of their intention to revoke the Will which must be executed in the same way as the Will (per Section 20 of the Wills Act 1837).

The Commission have proposed that these rules should not change.

Whether or not marriage revokes a Will should be considered.

Currently marriage revokes a Will (i.e. it is no longer valid).

The Commission have asked respondents to consider whether this should change. Marriage does not automatically revoke a previous will in other jurisdictions, including Scotland, British Columbia, New York and California, although it does in New South Wales.

The Commission have also asked respondents to comment on whether those making a Will could state that the Will should still apply, even if they get married in future (to someone who they have not yet named).

Currently Section 18 of the Wills Act 1837 allows a Will to be drawn up “in contemplation of marriage to a particular person” so that when the person marries, the Will is not revoked. This is mirrored in the Civil Partnership Act 2004 which allows Wills drawn up “in contemplation of a registered civil partnership to a particular person.” The key point is that the provisions only apply where a specific person is named, and the marriage takes place in the near future.

Additionally the Commission have suggested that if a person who lacks the capacity to make a Will gets married, this should not revoke their Will. Whilst it might seem strange that someone be allowed to get married who lacks capacity, the reason for this oddity is that the test of mental capacity required to marry is less arduous than the test of mental capacity required to make a Will.

Property contained in a ‘mutual Will’ should be open to challenge.

Currently if a person makes a Will and excludes a dependent (or if the person dies without a Will and the dependent will not benefit under the rules of intestacy) that person can make a claim against the ‘estate’ (all the person’s money and property) for ‘reasonable provision’. Claims are made under the Inheritance (Provision for Family and Dependants) Act 1975. In fact, even those who were not dependent on the person may be able to bring a claim in limited circumstances (see e.g. Ilott v The Blue Cross).

However, the Dependent can only claim for provision to be made out of the Deceased’s ‘net estate’.

If the Deceased made a ‘mutual Will’ (a type of Will sometimes made by a husband/wife which cannot be altered after the first person’s death) the property left in that mutual Will does not form part of the net estate. Often all of the Deceased’s property will be dealt with by the mutual Will, leaving nothing for Dependents to claim against.

The Commission has proposed that the Court should be able to distribute all of the Deceased’s property (once funeral expenses, administration expenses, debts and liabilities have been deducted) even if it has been left in a mutual Will.

The doctrine of ‘donatio mortis causa’ should be considered.

Deathbed gifts

Deathbed gifts, which require no formalities, could be abolished.

Currently the doctrine of donatio mortis causa (DMC) allows people to make a gift in contemplation of death which is conditional on death. An example might be:

“I am going for a risky operation on Thursday. If I die, my house belongs to you.”

There are no formalities for this type of gift. The requirements are:

  1. The donor (the person giving the gift) must contemplate his or her impending death.
  2. The gift must take effect only when his or her contemplated death occurred.
  3. The donor must “deliver dominion” (possession) over the subject matter of the gift to the donee.
  4. The gift must be revocable during the person’s lifetime.

Source: King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221

Additionally the donor must have mental capacity to be able to make the gift, at the time of making it.

There is a lot of uncertainty surrounding DMCs – for example, it is not clear whether such a gift would fail if the person had time to make a valid Will.

Conclusion

We have attempted to set out the main proposals of the Law Commission above. There are other proposals and the full consultation document can be viewed here.

Responses should be made before 10th November:

(1) by email, to propertyandtrust@lawcommission.gsi.gov.uk; or

(2) by post, to Damien Bruneau, Law Commission, 1st Floor, Tower, Post Point 1.53, 52 Queen Anne’s Gate, London, SW1H 9AG.

If you would like advice about making a Will or you would simply like to review your current Will with a legal professional, get in touch with our friendly team on 0800 788 0500 or email info@aprilking.co.uk.

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