Move to bring ‘outdated law’ on wills into 21st century

The law governing the writing of wills needs to be updated to reflect modern understanding of dementia and mental capacity.

The government should also consider the introduction of electronic wills and reduce the age for making a will from 18 to 16.

Those are some of the recommendations from the Law Commission in a public consultation about how the will writing process should be brought into the 21st century.

Law Commissioner Professor Nick Hopkins said: “Making a will and passing on your possessions after you’ve died should be straight-forward. But the law is unclear, outdated and could even be putting people off altogether.

“That’s not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”

Currently 4 out of 10 people don’t make a will, which means their estate may not be distributed to relatives and friends in the way they would like.

The Commission is particularly concerned that the law is out of date in the way it assesses whether a person has the mental capacity to make a will that truly reflects their wishes.

In a statement, the Commission said: “A will is only valid if the person writing it understands what they are doing” – however the law uses a Victorian test which takes no account of modern medical understanding.

“It focuses on “delusions” of the mind; doesn’t reflect the understanding of conditions like dementia where mental capacity can be changeable; and differs from the modern test for capacity in other areas of decision-making – the Mental Capacity Act 2005.”

These are some of the main proposals the Commission has put forward to improve the will making process:

  • 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 assessing whether a person has the required mental capacity to make a will
  • giving the Lord Chancellor power to make provision for electronic wills
  • lowering the age at which people can make a will from 18 to 16 years old.

Concerns will remain amongst many practitioners regarding capacity and undue influence if electronic wills are permitted in the near future regardless of recommendations to change the rules regarding undue influence and capacity tests

We shall keep clients informed of developments.

Please contact us if you would like more information about the issues raised in this article or any aspect of the wills and probate on 029 2034 5511 or