Law Commission (England and Wales) to reconsider will-making regime

The England and Wales Law Commission is considering plans to reform the will-making regime, including the rules for validity of wills and testamentary capacity. This post looks at the problem with the current regime, the focus of the Law Commission and when the reforms are likely to come into effect.

What's the problem with the current regime?

It is estimated that over 40% of adults in the UK do not have a will. Those who do may find that their wills are to be deemed invalid under the current law.  Further, the current law has not been updated to reflect trends in modern society, particularly co-habitation between unmarried couples and second marriages.

The issue of increasing dementia rates is also a concern to the Law Commission. The law on testamentary capacity has not been updated since the Victorian era (it was set out in the famed case of Banks v Goodfellow) and there is concern that the test for testamentary capacity is no longer suitable in the 21^st century.

What's the focus of the Law Commission?

The Law Commission will focus on four areas of potential reform:

1. Testamentary capacity;
2. Formalities of a valid will;
3. Rectification of wills; and
4. Mutual wills.

The Law Commission will also consider how the law can be changed to encourage will-making in the 21^st century and updated to reflect social and technological developments. For example, the Law Commission will query whether it is time to digitalize the will making process (as has been developed in conveyancing).

When will the reforms come into effect?

The Law Commission commenced work in early 2016 and expects to release its final recommendations and draft bill in 2018. The latest status update can be found here.

For more information, please contact Richard Norridge, Partner, or your usual Herbert Smith Freehills contact.