The Law Society has said courts should be allowed to recognise people’s final wishes, even in cases where a traditionally valid will is not provided.
Chancery Lane said today that the lack of a formal will should not restrict a court from respecting someone’s wishes – provided they can be safeguarded from fraud.
The Society was responding to the Law Commission’s consultation into will reform. The consultation, which proposes widespread reform to the centuries-old law, closes tomorrow and will later be assessed by the government.
One of the more controversial suggestions was to give courts a ‘dispensing’ power. This would give 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.
The commission said this could include a will sent via an electronic message or audio recording.
‘Our tentative initial view is that the scope of any dispensing provision in English law should be drawn widely. Were a dispensing power to be introduced, there are strong arguments that it should apply not only to traditional written documents, but also where testators express their testamentary intentions in an electronic format, as well as in an audio or audio-visual recording,’ the consultation document said.
Joe Egan, president of the Law Society, said: ’When 40% of people die without making a will we know there is more we can do to make the process accessible to the public. The lack of a formal will should not restrict a court from respecting someone’s final wishes when those can be proven - with appropriate safeguards against fraud.’
The Society also agreed with the commission that the legal age to make a will should be lowered to 16 and that laws governing testamentary capacity should be updated so that they are in tune with the Mental Capacity Act 2005.
Egan said this would bring clarity to courts and protect the rights of the most vulnerable people in society.