Outdated Victorian-era laws surrounding wills need an overhaul, the Law Commission says today in a wide-ranging consultation aimed at bringing the law into step with the modern world. Among its proposals are that the lord chancellor should have the power to make provisions for electronic wills, once technical obstacles are overcome. 

In a consultation document published today the commission said current laws are failing to protect the vulnerable. For example the law relies on a Victorian mental capacity test involving ’delusions’ of the mind, not reflecting an understanding of conditions such as dementia where mental capacity can be changeable.

According to the commission, this differs from the position in the Mental Capacity Act 2005 – the modern test for capacity. The consultation document proposes that the test for mental capacity set out in the 2005 act should be adopted for testators and that the specific elements of capacity necessary to make a will should be outlined in legislation. 

It is estimated that around 40% of adults dying each year have not made out a will. But even for those who do have a will, the commission said if formal rules are not followed – even when it is clear what someone’s intentions were – people’s dying wishes can sometimes not be acted on.

The consultation paper proposes giving courts the power to recognise a will in cases where formality rules have not been followed but where the will-maker has made their intentions clear.

Nick Hopkins, law commissioner, 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 But the law is unclear, outdated and could even be putting people off altogether. Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.’

The consultation document does not go into detail about any proposed changes that may impact the Supreme Court’s ruling earlier this year in Ilott v The Blue Cross and Ors – though a line in the footnotes acknowledges the judgment. However, the law commission does reference the importance of testamentary freedom, which the judgment confirmed.

According to the commission, the fact that a testator favours a charity over family and friends is not a ground to ’cast suspicion’ over a will. ‘Such decisions are the expression of testamentary freedom, not an indication that a vulnerable testator has been abused,’ the document states.

The commission is also proposing reforms including;

  • Ditching the term ‘testator’ in favour of ‘will-maker’;
  • Lowering the minimum age for making a will from 18 to 16;
  • Legalising electronic wills - subject to finding a secure way for the testator and witnesses to sign them digitally. 

The Law Society said the consultation was welcome but that some of the proposals raised 'challenging questions'.

President Joe Egan said: 'Some of the proposals, such as allowing the court more flexibility when there are harmless errors in a will but the deceased person’s wishes are clear, show immediate promise and are likely to get a positive response from solicitors. Others, such as enabling wills to be made electronically in the future, raise important but challenging questions, especially on how safe electronic wills would be from fraud or undue influence against vulnerable people.'

The consultation will run until 10 November 2017.