The Eric Whitehead Partnership

A public consultation by the Law Commission, launched on 13^th July, is “a welcome step towards updating our will-making laws to keep them fit for purpose in the 21st century”, the Law Society has said.

Under laws which date back to 1837, a Will needs to be made in writing and signed by the Testator and two witnesses in order to be valid.  The Law Commission believes that the current rules are unclear and that the current system is outdated and needs to keep up with the digital age.

In the consultation paper, the Law Commission proposes:

• Giving the Courts power to recognise a Will in cases where the formality rules have not been followed, but the Testator has made clear their intentions;
• An overhaul of the rules protecting those making a Will from being unduly influenced by another person;
• Applying the test of capacity in the Mental Capacity Act 2005 to the question of whether a person has the capacity to make a Will;
• Providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a Will;
• Giving the Lord Chancellor power to make provision for electronic Wills; and
• Lowering the age at which people are able to make a Will from 18 to 16 years old.

The consultation runs until 10^th November and we shall provide an update at the end of the year.