WillsAn Overview of The Law Commission’s Will Supplementary Consultation Paper

On 5 October 2023, the Law Commission launched their Making a Will: A Supplementary Consultation Paper. This is a follow up to their previous Consultation on Wills in 2017.  Unlike the previous consultation which was wide ranging, the Supplementary Paper focuses on two areas in which they believe views may have changed since the initial consultation. These are electronic wills and revocation of wills due to marriage and civil partnership.

This article will cover the Supplementary Paper’s queries and proposals.

Background

On 13 July 2017, the Law Commission launched a Consultation on potential changes in the law on wills and asked for responses. The 2017 Consultation sought views on matters including but not limited to:

• A potential dispensing power to allow courts to recognise a will as valid even if it did not comply with all formality requirements;
• A formal support scheme to assist those with diminished capacity to write a will;
• Electronic wills;
• Possibility of children writing wills or lowering the age for making a will to 16;
• Review of the ademption rules in limited circumstances;
• Amendments to the undue influence, knowledge and approval and testamentary capacity tests.

The consultation closed on 10 November 2017 and responses began to be analysed by the Law Commission. The project was initially paused for the Law Commission to focus on a consultation on weddings at the Government’s request and was later delayed due to the COVID-19 pandemic.

The Law Commission has restarted the consultation into wills but due to the passage of time since the original consultation and the impact of the COVID-19 pandemic on wills, the Law Commission wish to refocus on electronic wills and revocation due to marriage and civil partnership as they believe there may have been a shift in views since 2017.

Electronic Wills

At the time of the 2017 Consultation Paper, electronic wills were still quite novel. There had been little discussion on implementing them in England and Wales. In other jurisdictions, electronic will had been accepted under dispensing powers (powers which allow the courts to recognise a will as valid although formalities were not complied with) and one jurisdiction (Nevada, USA) had put legislation in place to recognise electronic wills but there was no evidence at the time on it being successfully used.

The idea of an electronic will is no longer as novel. Since 2017 there has been greater use of digital documents and signatures for contracts and large developments in technology. The COVID-19 pandemic also saw a role for technology in will writing to allow testators to make valid wills while restrictions and social distancing was in place, including allowing witnessing to take place remotely. Several other jurisdictions implemented electronic witnessing, some temporarily and others on a permanent basis, and others also introduced permanent reforms to allow electronic wills.

Under the current formality requirements in the Wills Act 1837, it the Law Commission’s opinion that it is uncertain whether an electronic will would meet formality requirements and they consider that position should be clarified. This was proposed in the 2017 consultation and it remains the Law Commissions view that the Wills Act should be amended to exclude the possibility of electronic will being valid.

The Law Commission note that wills are unique documents and are regularly made without professional assistance and with no third party knowledge other than the two witnesses. They are not subject to any registration requirement and can be kept entirely private until death. They therefore have no scrutiny until death, at which time the testator cannot provide any evidence. Wills operate in a way far different to other contractual documents where electronic execution is commonplace. With wills being unique, any electronic formalities would need to be bespoke and may be different to those of paper wills.

The Law Commission are not seeking exactly what any bespoke requirements should be but are instead focussing on what formalities need to achieve. It is their view that the formalities for an electronic will would need to provide the same functions to at least the same standard.

The Law Commission have two proposals on the potential to make electronic wills valid:

1. make provision for electronic wills in a new Wills Act; or
2. put an enabling power in a new Wills Act which would allow for electronic wills to be made valid by the Government at a later date in secondary legislation.

There is no proposal to remove the option to make a paper will. This will always remain an option.

Revocation by Marriage or Civil Partnership

The Law Commission consider this issue needs a fresh look in light of increasing concerns on ‘predatory marriage’ in recent years. A predatory marriage is one where a person marries another, who is often much older or lacks mental capacity, as a form of financial abuse. This is often done with the intention to inherit from the person under the intestacy rules.

The 2017 Consultation considered revocation by marriage, but did not consider the risk of predatory marriages, which are now more widely known and was highlighted to the Law Commission in their weddings project.

In the 2017 Consultation, the Law Commission did not have a particular view on the issue to make a proposal and asked a number of open questions:

• Requests for evidence on the level of public awareness of marriage revoking a will;
• Whether consultees thought the rule should be retained; and
• Whether testators should be able to opt out of the rule (i.e. by will stop any future marriage revoking the will).

The Law Commission also highlighted a potential concern in 2017 that the mental capacity test for marriage is different, and has a lower threshold, than the test for testamentary capacity. A person could therefore marry, which would revoke their will, but not have the capacity to make a new will. They did therefore propose that if the revocation by marriage rule remained, that a specific exception to the rule applies where the testator lacks testamentary capacity and is unlikely to recover.

The majority of responses to the 2017 Consultation were in favour of keeping the rule. This is in spite of a substantial majority believing public awareness of the rule were low. The majority were also in favour of not empowering testators to be able to opt out of the rule entirely. A small majority did agree with the new proposed exemption where the testator lacks testamentary capacity at the marriage.

Very few respondents to the 2017 Consultation raised predatory marriage as a potential concern. With this issue now being more well known, the Law Commission wishes to take new views on the subject.

Conclusion

The consultation is open to responses until 8 December 2023 and a list of the Law Commission’s questions can also be found at the end of this article. I would recommend reading the report in full, which can be found here.

 

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Law Commission’s Questions

Question 1

We invite consultees’ views as to whether provision should be made so that electronic wills can be valid under the law.

 

Question 2.

We invite consultees’ views as to whether a new Wills Act should either:

(1) include an enabling power, exercisable by the Secretary of State, for secondary legislation to make provisions that would permit electronically executed wills or fully electronic wills that complied with the secondary legislation to be recognised as valid, or

(2) allow for and outline the requirements for electronic wills to be valid on the face of the Act.

 

Question 3.

We invite consultees’ views as to whether an enabling power, if enacted, should:

(1) be neutral as to the form that electronically executed wills or fully electronic wills should take;

(2) ensure that the requirements imposed for an electronically executed will or fully electronic will, as the case may be, are able to fulfil the functions served by the current formality requirements to at least the equivalent degree of paper wills executed with a handwritten signature and in person;

(3) require the Secretary of State to obtain the advice of a committee on electronic wills and/or to consult;

(4) require the draft of the secondary legislation to be laid before and approved by resolution of each House of Parliament; and

(5) enable the Secretary of State to make provision to address issues that might arise where electronic wills and paper-based wills co-exist (such as where a paper will is amended by an electronic codicil or vice versa) and/or to mirror or modify elements of the existing law in an electronic wills context (for example, in relation to revocation by destruction).

 

Question 4. We invite consultees’ views about what the formality requirements should be for electronic wills to be valid, if provision is made for their validity on the face of a new Wills Act.

 

Question 5.

We invite consultees’ views on the prevalence of predatory marriage, and welcome any evidence they can provide.

 

Question 6.

We invite consultees’ views as to whether the rule that marriage and civil partnership automatically revokes a previous will should be abolished or retained

 

Question 7.

We invite consultees to share with us any evidence or data they have about the impact of possible reforms considered in this Supplementary Consultation Paper and the 2017 Consultation Paper.

 

Question 8.

We invite consultees to share with us any evidence or data to suggest that possible reforms, considered in this Supplementary Consultation Paper and the 2017 Consultation Paper, could result in advantages or disadvantages to particular groups or based on particular characteristics (with particular attention to age, disability, transgender identity, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation).