What happens when we die?

Death, the law, and the Wills Bill 

The two certainties of life are said to be death and taxes. The Law Commission has been and is working hard on the former of these. They have recently published a draft Wills Bill, with which this article is largely concerned, but they have also consulted on new methods of disposing of human remains, including alkaline hydrolysis and human composting, and will shortly begin a consultation on rights and obligations relating to funerary methods, funerals and remains: establishing whether a person’s wishes about what happens to their body after death should be binding, and who should have rights and obligations in relation to bodies in other cases. Given the certainty of death, these are matters which concern us all, both in relation to our own wishes and the wishes of others.  

The draft Wills Bill proposes a timely revision of the current Wills Act which, although it has been subject to amendment, dates back to 1837. This article summarises and then comments on the main conclusions of the Law Commission and the proposals for reform. 

Testamentary capacity: updating the legal test 

The Report first addresses the topic of testamentary capacity, the test for which is currently governed by the case of Banks v Goodfellow (1870). The Report recommends that the test in the Mental Capacity Act 2005 (“MCA”) should be used instead, to determine whether someone has testamentary capacity. The Banks v Goodfellow and MCA tests are very similar, so this doesn’t represent a major change to the law, but the Commission considers it will bring a greater degree of clarity and consistency. The Report recommends that the statutory presumption of capacity in the MCA should apply to will-making, and that the rule in Parker v Felgate – which applies as an exception to when the testator must have testamentary capacity – should be retained. 

Statutory wills and supported will-making 

The Report then considers the related issue of statutory wills: wills made by the Court of Protection on behalf of a person who lacks the capacity to make their own, in accordance with the best interests test under the MCA. The Report repeats an earlier recommendation that section 4(6) of the MCA should be amended to require that decision-makers give “particular weight” to the person’s wishes and feelings when determining their best interests. The Report also recommends that the existing limitation on the effect of gifts in a statutory will of immoveable property located in other jurisdictions or of movable property from foreign-domiciled testators should be abolished. The Report also considers supported will-making and the protections required if the general scheme of supported decision making were to be applied to will-making. 

Formal requirements for valid wills 

The Report next turns to the formal requirements necessary to make a valid will. It does not recommend any fundamental changes to the formality requirements that are currently found in section 9 of the Wills Act 1837. The only proposal for change is that the requirement in section 9 for the witnesses to attest when they sign the will in the presence of the testator should also apply when the witnesses acknowledge their signatures in the presence of the testator. The Report recommends reform in relation to privileged wills, meaning wills which can be validly made without complying with any formalities at all, limiting the scope of the privilege only to those serving in the British Armed Forces on active service, and to civilians who are subject to service discipline and who, if they were serving in the Armed Forces, would be on active service. 

Dispensing power: a major reform proposal 

The most radical and significant recommendation in the Report is that a dispensing power should be introduced. A dispensing power could apply to a will which did not comply with the formality requirements; it would allow the court to determine that the will should nevertheless be deemed to be a formally valid will. The Report recommends the introduction of an intention based dispensing power, meaning that the court would be able to exercise the power where it determined that the will represented a person’s testamentary intentions. It would provide a remedy in cases where the testator had failed to comply with the formality requirements, but their intentions were nevertheless clear. 

Gifts to witnesses and others involved in will signing 

The Report recommends extending the rule that invalidates gifts to a witness and their spouse or civil partner, so that it also applies to gifts made to anyone who signs the will on behalf of the testator, their spouse or civil partner, and cohabitants of either. However, to prevent this rule from applying rigidly and unfairly, the Report also recommends that a gift which would be invalid under the rule should be able to be permitted by the court, if the court considers it just and reasonable to do so. 

Electronic wills: embracing technological change 

The Report recommends that electronic wills, that is wills in electronic rather than paper form, should be expressly permitted. Whether a will is in paper or electronic form is a matter of form, and so exclusively a matter of the formality requirements. Accordingly, so long as the formality requirements are met, paper and electronic wills should be equally valid, and able to alter, revoke and revive each other. The Report recommends that electronic wills should be required to comply with the same formality requirements that apply to paper wills, except that the requirement of “presence” should be capable of being satisfied by remote presence. However, it also recommends that electronic wills should have to comply with additional requirements in order to be valid, specifically that a reliable system must be used in order to link the testator (or the person signing on the testator’s behalf) and the witnesses with their signatures at the time of signing; identify the original or authentic will from copies of it; and protect the original or authentic will from unauthorised alteration or destruction. These requirements would be contained in regulations issued by the Secretary of State. 

Undue influence and knowledge & approval 

The Report goes on to consider the law governing testamentary undue influence and the substantive requirement that the testator knows and approves their will at the time of making it, making recommendations in relation to both. The Report recommends that the court should be enabled by statute to infer that the testator was subject to testamentary undue influence in respect of the will as a whole or of any disposition in the will. The court would be able to draw this inference if satisfied that there were reasonable grounds to suspect undue influence, considering in particular evidence about any relationship of influence between the person presumed to have exerted undue influence and the testator, that person’s conduct in relation to the making of the will, and the circumstances in which the will was made, among any other relevant factors. This recommendation seeks to address the difficulty under the current law of successfully proving testamentary undue influence. The Report also recommends placing the common law requirement of knowledge and approval on a statutory footing in order to ensure that the requirement for knowledge and approval plays its proper role in ensuring that the testator intended to make the will in the terms they did, while also preventing the requirement from being used as an indirect or roundabout way of alleging undue influence. 

Lowering the age to make a will 

The Report is of the view that the age at which a person is able to make a will should be lowered from 18 to 16 years of age and also that the Family Court should have the power to authorise a child under the age of 16 to make a will, using the common law Gillick competence test to determine whether the child has the necessary understanding to do so. 

Interpretation of gifts to merged or reconstituted bodies 

The Report makes only one limited recommendation in relation to the law of interpretation, to address a very specific lacuna in the law. It recommends that there should be a new interpretive provision to apply where the testator has made a gift to a non-charitable body which, since the date of the will, has merged with another body or has been reconstituted. In such a case, the successor body should be interpreted to be the original body. The effect will be that the gift to the original body will not fail due to the body having ceased to exist by the time of the testator’s death (under the doctrine of lapse). 

Rectification: expanding the court’s powers 

It also makes only one recommendation in relation to rectification, but it is a recommendation for significant reform. The Report recommends that the power to rectify a will should be expanded in scope, so that a will can be rectified where the will fails to carry out the testator’s intentions due to a failure by the testator or the drafter of the will to understand the meaning or direct effect of the words used in the will. 

Ademption: preventing unintended failures of gifts 

The Report considers the doctrine of ademption, under which a specific gift of property fails if the property is not in the testator’s estate or has changed in substance by the time they die. It recommends three changes to the law, to prevent the operation of ademption in specific circumstances:  

• Firstly, it recommends that a gift in a will should not be adeemed if the gifted property is disposed of by a donee acting under a Lasting Power of Attorney (“LPA”), just as it is not adeemed under the current law if the property is disposed of by a deputy acting under the MCA.  

• Secondly, it recommends that where a testator exchanges contracts to sell the gifted property, or grants an option to purchase the gifted property, but dies before the sale is completed or the option is exercised, the contract or option should not adeem the gift and the beneficiary of the gift will be entitled to the property subject to the contract or option.  

• Finally, it recommends that where property is destroyed or lost simultaneously with the testator dying, or the order cannot be determined, the testator should be presumed to have died first. This will have the result that the destruction or loss of the property does not adeem any specific gift of the property in the testator’s will. 

Revocation: ending automatic revocation by marriage 

The Report does not make any recommendations to amend the law on revocation by a later will or codicil, by written intention to revoke, or by destruction. Its view is that the law on the ways that the testator can intentionally themselves revoke their will operate well. It does, however, recommend that the existing rule that the testator’s will is automatically revoked when they get married or form a civil partnership should be abolished. This change would remove an incentive for predatory marriage. 

Mutual wills and financial provision 

In relation to mutual wills, the Report recommends that property subject to a mutual wills arrangement should be treated as part of the testator’s property out of which the court can make an order for reasonable financial provision to a family member or dependent of the testator under the Inheritance (Provision for Family and Dependants) Act 1975. 

No Reform: donatio mortis causa and guardian appointments 

The Report does not recommend any reform to the doctrine of donatio mortis causa (a gift made in contemplation of and conditional on death), nor to the requirement that the appointment in a will of a guardian for the testator’s child be dated. 

Conclusion: a modernisation long overdue 

These proposals, if adopted by Parliament, would represent a welcome updating of one of the oldest statutes in daily use. Life has changed in ways that could not have been imagined in 1837 and the use of technology is ubiquitous.  

It seems absolutely right that questions relating to testamentary capacity and statutory wills should reflect a modern understanding of mental health and the illnesses that affect an ageing population. 

The basic requirement that a will is signed and witnessed by two witnesses remains, but with a proposal for a dispensing power when for some reason this has not happened, provided there is evidence to confirm that the document does represent the testator’s wishes. Quite how this will work remains to be seen, but negligence claims against solicitors who didn’t manage to get an approved draft will executed before death should be fewer. 

It is good to see rules relating to witnessing by spouses extended to cohabitees. There can be no justification for a distinction today, given the purpose of the restriction. 

The ability to make an electronic will is necessary and a recognition of technological change. Given the rate at which this happens, the proposal that the precise requirements are to be contained in Regulations appears sensible and practical. 

 There is a recognition that undue influence is a problem, both in the sense that testators, particularly those who are elderly or infirm, are vulnerable to it and also the difficulties under the current law of proving it. The proposal that where the circumstances justify it, inferences can be drawn, should give pause for thought to those tempted to put pressure on a vulnerable testator to change their will and assist those who discover that longstanding testamentary intentions have been changed to benefit a carer or single family member. 

The proposals that those under 18 should be able to make a will, while unlikely to be much used, recognises that there will be circumstances where a young person does want to express testamentary wishes and this should be made possible. It reflects the fact that family circumstances can be a lot more complex than they were in 1837.  

The proposed expanded power to rectify a will where the will fails to carry out the testator’s intentions due to a failure by the testator or the drafter of the will to understand the meaning or direct effect of the words used in the will is welcome. Cases where the court would have been unable to give effect to the testator’s clear intention because they, or the will drafter, intended to use the words they did, but misunderstood the effect of those words, should now be capable of remedy. 

The proposed changes in relation to ademption are also welcome, providing increased consistency by bringing provisions for sale of property by LPA attorneys into line with the provisions relating to deputies; allowing beneficiaries to receive property subject to a contract or option and giving certainty where property is lost or damaged at the same time as the testator’s death. 

Finally, perhaps one of the most significant proposals is that marriage or forming a civil partnership should no longer automatically revoke a will. This is intended to discourage predatory marriages, which are thought to have become an increasing problem. 

It must be hoped that time can be found in Parliament to turn this Bill into an Act! 

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Timothy Clarke offers advice and representation in both contentious and non-contentious work relating to real property, wills, the administration of estates and trusts and partnerships. To instruct Tim, or find out more, please get in touch.