Proposals for wide-reaching will reform could see people turning to unregulated providers, solicitors have warned, as the government prepares to consider the biggest shake-up yet to centuries-old wills laws.
A consultation by the Law Commission, which suggested several areas of reform, including over electronic wills, closes on Friday.
The Gazette understands that around 80 detailed consultation responses have been received so far, and that more are expected in the next few days. The figure is thought to be higher than many recent property, family and trust projects.
The consultation document, which stretches to more than 200 pages, suggests making provisions for electronic wills, once technical obstacles are overcome and ditching the Victorian mental capacity test in favour of the modern test as provided for in the Mental Capacity Act 2005.
But Nicola Waldman, partner at London firm Hodge Jones & Allen, warned that the proposals contained no provision to deal with the issue of regulation.
Waldman said some of the proposals could increase the costs of professional will writers because the burden placed on them, including that of dealing with issues including capacity, will have increased.
‘Will writing remains an unregulated activity. This [the proposals] will make it more expensive for testators and less likely that professionals will be used. Potentially, this will lead to more people using will writers who may not be insured or qualified to deal fully with the matter,’ she warned.
The Legal Services Board recommended regulation of will writers in 2013, however the government rejected the suggestion.
The consultation document also proposes giving courts the power to recognise a will in cases where formalities have not been followed but where the will-maker has made their intentions clear. Waldman said that although this would make wills ‘easier’ it risks undermining the fact that they remain ‘extremely important documents with significant financial implications’.
‘Any dispensing power given to the courts to uphold a document as a will must be limited so that wills do not fail where the intention of the testator is absolutely clear,’ she added.
Leticia Jennings, partner at Bates Wells Braithwaite, warned the government to tread carefully. ‘Whilst areas of the law are derived from the 19th century and some of the language may seem archaic, the law is largely settled and widely understood,’ she said.
However, she added that a narrowly drawn dispensing power, permitting the courts to admit to probate wills that might otherwise fail due to a minor technicality, would be sensible.
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.