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Law Commission’s Plans To ‘Modernise Wills’

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The Law Commission’s plans to ‘Modernise Wills’ and make it easier to challenge one.

The Law Commission has proposed a series of major reforms to the law of wills in England and Wales to make it ‘fit for purpose in the modern age’. Their plans were published on the 16th May in a final report aimed at bringing clarity to their suggestions. With the current law still largely based on the 1837 Wills Act, these reforms aim to modernise the process, make it more accessible, and better protect vulnerable people from exploitation.

One of the most significant proposals is to allow electronic wills. At present, a valid will must be signed in ink and witnessed by two people physically present, a requirement that was proven to be difficult during the Pandemic and outdated in today’s digital world. The Commission suggests that once secure systems are in place, electronic wills should be legally recognised.

Another key recommendation is to end the rule that marriage automatically revokes a will. Under current law, getting married cancels any existing will unless it’s made in contemplation of that marriage. This can lead to unintended consequences. The proposed reform would keep a person’s will in place after marriage unless they choose to change it.

The Commission also aims to make it easier to challenge wills that may have been made under pressure. As it stands, proving undue influence requires strong direct evidence of coercion which if often difficult to obtain. Under the new proposals, courts would be allowed to infer undue influence from relevant surrounding circumstances making it easier to challenge a will based on suspicious behaviour.

Importantly, the test for mental capacity would also be updated. The Commission proposes adopting the more modern approach set out in the Mental Capacity Act 2005. This would bring much needed clarity in cases involving dementia or cognitive decline, areas where disputes often arise.

Lastly, the Commission recommends allowing courts to validate informal wills. For example, handwritten notes or digital messages, if there is clear evidence of the deceased’s intentions. While this may help in emergencies, it could also open the door to more complex disputes about what someone really intended.

Further reforms include tightening the rules around witnesses to prevent potential abuse and lowering the age at which a person can make a will from 18 to 16.

Together, these reforms aim to bring wills law into the modern age while offering greater security and fairness. The next step is for the Government to respond on whether they support any of the Law Commission’s. A full response is expected within the next 12 months.

If you think you may have grounds to challenge a will these reforms could strengthen your position. Early legal advice is vital. Our team can help you assess the situation clearly and take the right steps to protect your interests, whether under current law or in light of the proposed changes.

If you haven’t reviewed your will recently, or if you don’t yet have one, now is a good time to speak to a solicitor and ensure your wishes are properly protected.

For all wills/contentious probate advice and representation contact us at [email protected]

Invalid Will

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There are a number of legal reasons why a will made may be invalid. This article deals briefly with the situation where it cannot be proved that the will was properly executed.

Legal requirements

It is Section 9 of the Wills Act 1837 that sets out the legal requirements for how a will should be executed. This includes that a will must be in writing and signed in a particular manner by the testator (person making the will) and their witnesses.

Case law has held that only the strongest of evidence will rebut the presumption that a will was properly executed.

There have certainly been some interesting cases over the years:-

In Marley v Rawlings in 2012 mirror wills were prepared for a husband and wife to execute. However, their solicitor unfortunately gave them the wrong will to execute. The Supreme Court held even though the wrong spouse had signed the will it could be dealt with under Section 20(1)(a) of the Administration of Justice Act 1982 on the basis that it was a clerical error and it was clear what each of the testators had intended.

But in Barrett v Ben and others in the same year the Court of Appeal said that the testator’s sister signing the will made it invalid because there was not sufficient evidence that the sister had signed it at the direction of the testator.

There have been cases that have come before the courts where witnesses have not signed the will but as long as they saw the testator sign the will and have provided their personal details they could, after the testator’s death, be able to give evidence that they had witnessed the will signing. Therefore, such wills have been valid.

Why is it important?

Whether a will is valid or not can make a huge difference to how the deceased’s estate will be administered. If there was only ever the invalidly executed will prepared by the deceased then it will be treated as if he/she died intestate (with no will) and therefore the intestacy rules will dictate who the beneficiaries are. If one or more previous wills were made during the testator’s lifetime then if the last will prior to the invalid will can be proved then the estate will be administered in accordance with that. Therefore, there can be every benefit sometimes in a beneficiary that has recently been disinherited arguing that the last will of the deceased is invalid.

What do you do if the will is invalid?

You will want to stop the invalid will being used to obtain the grant of probate and the estate being administered in accordance with its terms. Applying for a caveat at the Probate Registry is the first step. However, you will need legal advice as to whether you have good grounds to be challenging the validity of the will.

How can you find out more about the circumstances in which a will was made and/or executed?

If a will was professionally prepared by a will writer or solicitor they are under a legal obligation, further to a case of Larke v Nugus and Law Society Guidance to provide details about the will making after the testator’s death to anyone likely to have an interest in the deceased’s estate.

For legal advice on this area contact us – whether you are the executor, beneficiary or a family member.

An Increase In The Value Of A Gift In A Will Did Not Make The Will Invalid

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The case of Skillett v Skillett in the High Court this year has held that a change in the value of a gift in a Will did not mean the person making the will had lacked the necessary capacity to understand nor approve of the Will.

The Will left everything to Mr Skillett senior’s wife but if she pre-deceased him it left a plot of land to one son and cash gifts of £50,000 to the deceased’s three other adult children. The Will was made in 2011 and at the time the plot of land was worth about £50,000. However, by the time the deceased died it was worth £110,000. Therefore, one of the sons brought a claim arguing that his father lacked testamentary capacity and/or did not know and approve the contents of his Will.

The Judge said in the case that just because there was an inequality with value of the gifts at the time of death did not make the terms of the will irrational, nor invalidate it. There was evidence that Mr Skillett senior knew and understood the terms of his will and approved it.

If you instruct us to prepare your Will we will ensure we consider fully with you any risks associated with the fluctuation in value of testamentary gifts.

If you have not been provided for in a Will, or inadequate financial provision has been made for you, then Jennifer Carpenter as solicitor and partner in our Dispute Resolution department can advise you whether you have a claim.

All enquiries to [email protected].

Divorce And Making Your Will

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What happens to your Will if you get divorced or end your civil partnership?

When you divorce or end your civil partnership your former spouse/civil partner is treated as having died before you. Your former spouse/civil partner will not inherit anything from your estate unless your Will specifically stated that divorce or dissolution of a civil partnership would not affect the gift that was detailed in the Will.

In addition, if you had named your former spouse or civil partner as an executor in your Will (ie the person who collects in all your assets, pays off your debts and distributes your estate) they will not be able to act as your executor once you are divorced or after you have ended your civil partnership. If you had appointed your ex as your sole Executor, without any provision for a replacement, this would have to be rectified upon your death, which could cause delays and unnecessary costs.

Making a new Will

Unless there is good reason to the contrary the best time to make a new will is after decree absolute and after all outstanding financial issues have been settled. That is so that any future claim of an ex spouse can be properly quantified

It is especially important to make a will to ensure that your children are properly provided for.

Divorce also affects guardian appointments in a will. If the couple getting divorced have children together, and not from previous marriages, then the remaining parent shall continue to have responsibility for those children as that parent also has parental responsibility for those children. If there were children from a previous partner, and the wife, for example, had appointed the now former spouse as guardian in her will, this appointment would fail. The former spouse was not the biological parent of the child and therefore does not have parental responsibility for the child. He (or she) cannot be automatically empowered to continue to parent the child; he has to be chosen by the mother in her will. When this couple divorce, this appointment fails. If no other person is appointed, it shall be for Social Services to assess who is the appropriate adult to parent the child.

Next steps

For further information about making a Will, please contact a member of our Private Client department for expert and professional advice.

Hayley Ford – Partner/Solicitor – Private Client Department.

When Making A Will; Letter Of Wishes

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When making a Will, it is also possible to add a separate letter of wishes which can expand on certain clauses within your Will.

Letters of wishes act as a guide to your executors on your wishes but are not legally binding.

A clause within your Will dealing with your funeral directions often simply states whether you wish to be buried or cremated and where. In a separate letter of wishes you can go into further detail about the type of service you would want, the music to be played and instructions on your headstone. This letter can then be amended as often as you wish without the need for your Will to be amended which would incur costs.

It is sometimes necessary to set up trusts within your Will for beneficiaries who, for whatever reason, are not to benefit absolutely from you. In a letter of wishes you can give instructions to your Executors (who become the trustees of your trust) on how you would like your trust to be administered. For instance, you could ask for an annual income to be paid to a beneficiary. You can also advise on when lump sums could be released such as for the purchase of a house, wedding etc. Trust clauses in Wills specify that the trust is administering by the Trustees and do not go into more detail, by preparing a letter of wishes you can expand on your instructions.

It is sometimes the case that you do not wish to include certain people in your Will. If this is challenged in the future the courts may require more information on your reasons. You can prepare a detailed statement giving your reasons which could then be used as evidence in court.

Where you are appointing guardians in your Will for children under 18, you may wish to set out your wishes to those guardians. You could give instructions on how you would wish your children to be raised and educated.

Rather than including lists of personal items in your Will and to whom they are to pass, these can instead be included in a letter of wishes. Again, this letter can be changed as often as you like without the need for your Will to be amended. As personal possessions increase and change over time, the letter can be easily changed to reflect this.

The use of these documents prevents your Will being overly complicated and lengthy. The Will itself relates to facts and the law behind it.

What Is A Deed Of Variation?

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You may be surprised to learn that it is possible to alter someone’s Will after their death, providing that any beneficiaries left worse off by the changes agree. The changes can be made by what is known as a deed of variation.

If someone dies intestate (without a Will) then the intestacy rules govern who inherits. A deed of variation can also be used to change the inheritance in the same way as if there was a Will.

There are various reasons why it may be a sensible idea to change a Will or redirect inheritance under the intestacy rules. These include:-

  • to reduce the amount of Inheritance tax (IHT) or Capital Gains Tax (CGT) payable
  • to provide for someone who was left out of the Will
  • to move the deceased’s assets into a Trust
  • to clear up any uncertainty over the Will

Deeds of variation are a useful inheritance tax (IHT) planning tool because any inheritance from an estate that is redirected to others will be treated as if the deceased made the gift. This means that the person allowing the redirection does not have to survive the gift by seven years in order for it to fall outside of their own estate and therefore not be subject to IHT. A common example would be a child who is to inherit from their parent’s estate. If the child is already financially sound then they may not require the inheritance which would only increase the size of their estate, giving rise to further IHT charges on their own death. In this situation, the child may wish to redirect the inheritance to their own children who could benefit from the money.

It is important to know that a deed of variation must be made within two years of the date of death. Furthermore, once a deed of variation is signed it cannot be revoked so it is paramount that careful consideration is taken before entering into a deed of variation.

For more information, please contact our Wills and Probate department for expert and professional advice.

Do I Need To Appoint A Guardian For My Children In My Will?

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If you have children under 18 and you are making a Will, you should consider who would look after your children if you were to die while they are still under 18.

Writing a Will can give you peace of mind that your children will be cared for by whom you choose to look after them.

It may be that you have blood relatives who you would not want to look after your children. A Will allows you the opportunity to appoint who you would like to act as guardian for your children. You can also set out your reasons for the appointment in your Will.

If there are disagreements after your death, your Will and any additional wishes you have left would be used as evidence in court for your reasons for your appointment. Your reasons would be taken into account and carry weight with the court.

If you do not name guardians in your Wills and several potential guardians come forward, the court would have to decide to make a child arrangements order setting out with whom the child should live. The applicant who the Judge feels is best able to meet the needs of the child would be appointed. The court would need to take into account all the circumstances such as the child’s relationship with the proposed guardian and the wishes and feelings of the child him or herself in line with a child’s age and understanding.

If you were to die and the other parent of your child has parental responsibility, they would automatically become the child’s guardian irrespective of whether the parents are living together or not. If you choose someone other than the other parent with parental responsibility to be a child’s guardian in your Will, that person will not automatically become a child’s guardian. If they want to become the child’s guardian on the first parent’s death, they need to make a court application and ultimately if will be the court’s decision as to who is the best guardian to meet the children’s needs. The court will try to make a decision based on what is best for the child’s welfare using the welfare checklist which we can advise you on.

When choosing a guardian, you should consider the size of their own family and whether it would be feasible for them to take on your family. They may also not live locally which would involve a move of schools and friends for your child. They may also be older than you and within the period of guardianship may struggle to look after your children.

In your Will you can provide your guardians with additional assistance. If you own your own property; you can specify that your guardians live in your property with your children to prevent as much disruption to them as possible.

If you anticipate that your guardians would need a bigger car or would need to build an extension to their own property; you can provide a power for your executors to loan them money for this purpose.

Where There’s A Will There’s A Relative!

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Making a Will is a wise and important thing to do. You will have peace of mind knowing that your estate (that is, everything you own) will pass to your chosen beneficiaries.

Without a Will, your estate could pass to relatives you have not seen for years.

However, some people chose not to include a member of family in their Will. This may be a child or sibling and could be for a number of reasons, for example, a falling out or estrangement and even though most people would like to think that the relative would not try to contest the Will, there is always a risk that the relative could claim under the Inheritance (Provision for Family and Dependants) Act 1975 and if this happens then dealing with your estate can be lengthy, complex and expensive.

If you have a reason for leaving a relative out of your Will then we strongly recommend that you leave a personal letter with your Will explaining the reason why you have not included this particular person (or persons). You will not be around to explain why and a personal letter would help against any potential claim.

Who To Appoint As Executors Under Your Will.

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When making a Will you should consider carefully the right Executor to appoint as the role of an Executor carries important legal duties and responsibilities.

It is an Executor’s duty to administer the estate in accordance with the terms of the Will and in accordance with the law. Executors are personally liable for their errors or omissions. It is therefore extremely important you appoint somebody that you trust to carry out this role efficiently and responsibly. You can appoint an individual such as your spouse/partner, a family member or even a close friend.

You may however not wish to put this responsibility on an individual. You are therefore able to appoint professional Executors such as solicitors.

Dealing with the death of a loved one is a difficult time at best. Unfortunately it can also release underlying tensions and resentments between friends and even family members. By appointing a professional Executor such as Adams Harrison this would minimise any disputes that can arise.

Sadly, some Wills are challenged, especially where one beneficiary benefits more than others. Allegations of undue influence or lack of capacity can arise in these cases. By appointing Adams Harrison as Executors, your estate has a professional on hand who can rebut such allegations and robustly defend your last wishes.

If you wish to discuss making a Will or you require any further advice on this, please contact our Wills, Estates and Trust Team.

Leanne Mayes   Legal Executive

Wills for Second Marriages

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There are a large number of people who have been married more than once and who have children from previous marriages or relationships.

It is important to understand how the law works if you die without leaving a Will in this situation. A marriage automatically revokes any existing Will unless that Will was made in contemplation of marriage.

If you remarry and do not remake a Will, when you die leaving this second spouse and children from a previous relationship and perhaps children from the current marriage; your estate will be distributed under the Intestacy Rules. Your new spouse will inherit the first £250,000 of your estate. The remaining value of your estate is then split into two. The new spouse will inherit the first share outright and the second share will pass to your children equally.

Depending on the value of your estate, your new spouse could potentially inherit the whole of your estate with nothing passing to your children.

You must review your circumstances and make a Will after re-marriage or in contemplation of that marriage.

You should also consider that if you and your new spouse make mirror image Wills, there is nothing to stop your spouse from changing their Will at any time after your death.

To protect your children you could consider including a trust in your Will. There are various types of trust; in particular, a life interest trust or right of residence. This allows for your new spouse to benefit from the trust assets during their lifetime, but after their death, the assets can pass to your children. This ring fences the assets in the trust from your spouse’s assets so that the trust assets cannot be given away under their Will.

The usual asset to place in such a trust is your share of your property. It is important that if you own the property jointly that you hold as tenants in common. This means that both owners have their own individual share in the property which would pass under the terms of their respective Wills rather than pass automatically by survivorship to the surviving spouse.

Our will writing team can provide guidance, explaining how to ensure that you provide for your loved ones after your death.

Sarah Bruce
Legal Executive Wills Trust & Probate