Is the Wills Act of 1837 outdated?

The Law Commission have recently suggested that The Wills Act of 1837 may be outdated for our modern laws and ways of thinking; apparently needing an ‘overhaul’ according to an article published on 13 July 2017.

But, is the Wills Act really outdated? The Wills Act 1837 first came into force in the Victorian era when it may be suggested times were difference and more importantly the ‘vulnerable’ were not protected. Nowadays people we may be seen as being ‘vulnerable’ by the standards of the Victorians are protected more than ever before in several ways and therefore we could say the Wills Act is a little behind the times.

Around 40% of UK adults die without a Will every year but why is this? Is it because the Act still won’t guarantee their wishes? The Law Commission are considering drastic changes to the Act and are currently debating a new Capacity Test for one and additionally contemplating on a reform of the age you can make a Will; lowering this from 18 to only 16 years of age.

How would this affect me?

A Will is an important and personal document stating how a person wishes to distribute their possessions after their death. For a Will to be valid they must be made in accordance with certain rules; if the rules are not followed the wishes of the person may not be carried through no matter how small the break is.

The Law on making a Will states that a person must know what they are doing when making the Will and giving the instructions to a solicitor, however, the Law Commission are now suggesting that the test to establish whether a person knows what they are doing is a Victorian test which may not be sufficient under the 21^st century medical grounds. There is no reflection of any modern understanding of conditions like dementia, Alzheimer’s etc. and the test under the Wills Act 1837 does not mirror that of the Mental Capacity act 2005. The Law Commission says the Wills Act ‘focuses on delusion of the mind’ rather than applying a more details test like  that under the Mental Capacity Act 2005.

Hence the proposed over haul of the Act. On 13^th July 2017 the Law Commission proposed the following amendments to the Act:-

• The power being given to the Court to recognise a Will where the intentions of the person making the Will are clear but the formalities have not been followed
• Overhaul of the rules relating to those making a Will under the influence of another person; a person being coerced
• The test for mental capacity under the Mental Capacity Act 2005 being the only applicable test to prove mental capacity
• Statutory guidance being published for professionals who conduct mental capacity tests
• The power regarding electronic Wills
• As mentioned above, lowering the Will making age

A decision with regard to the proposed changes will be made by 10 November 2017 and the Law Commission are welcoming suggestions on the proposed amendments. What we must think is how this will affect the ability to make a Will in the future and whether it will make the Will making process more detailed or more problematic and complicated. Until then we await a decision on the 10 November 2017.

For advice on Wills contact our team on 0800 015 0340 to arrange an initial free half hour appointment at any of our offices in Huddersfield, Halifax, Wakefield, Horbury, Leeds, Pudsey or Morley.