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11th December 2023

The Law Commission’s supplementary consultation on Wills

The Law Commission’s supplementary consultation on Wills
Daniel Watson
Daniel Watson
Senior Associate

The Law Commission's supplementary consultation on Wills closed for submissions on Friday 8 December. 

The questions raised by the consultation were built on the Commission's 2017 consultation on Wills. The latest consultation focussed primarily on two questions:

  • Should provision be made to enable people to make a Will via electronic means; and 
  • Should the law be reformed so that the automatic revocation of a Will arising through marriage should be abolished? 

Should provision be made to enable people to make a Will via electronic means?

The facilitation of Will-making by electronic means has split opinion in the legal world. Some argue that it is an inevitable consequence of technological advances, and that electronic Wills would enable those who might otherwise not be able to make a Will, or who might be disinclined to do so (whether through disability or other reasons). Others argue that the safeguarding risks inherent in electronic Wills mean they should not be permitted. 

In our response to the Commission's consultation, we argued that the government should make provision for electronic Wills to be valid. We also stressed the importance of two key principles.

Firstly, the formality requirements for electronic Wills should be facilitative, and should not be so onerous that they prevent the availability of electronic Wills precisely for those who need to use them most (i.e. vulnerable or disabled testators).  

Secondly, the formality requirements for making an electronic Will should maintain the same level of safeguarding as a paper Will (namely, by requiring a valid, secure electronic signature and and an equally secure witnessing process). 

The key point is that electronic Wills must not make it any easier for unscrupulous individuals to exploit a testator via undue influence, fraud or abuse, or predatory marriage. The difficulty is that testators needing to make an electronic Will (perhaps because of disability or vulnerability) are precisely those who are at higher risk of financial abuse from unscrupulous family members, and who may need assistance to make their Will. 

These competing principles - making electronic Wills easy to implement, while also ensuring sufficient safeguarding - are not easy to reconcile, and it is our firm's view that any provision for electronic Wills should be subject to sufficient and ongoing parliamentary and governmental scrutiny to ensure that the safeguarding of testators (particularly vulnerable testators) remains satisfactory. 

Should the law be reformed so that the automatic revocation of a Will arising through marriage should be abolished? 

The consultation's second question - whether wills should automatically be revoked on marriage - is equally thorny. 

This firm's view is that the current position is flawed. The level of mental capacity required to enter a marriage is lower than the mental capacity required to make a Will. In other words, someone suffering from reduced mental capacity may be able to marry, but may be unable to make a Will. 

The problem is that, if the person who marries already has a Will in place, that will is automatically revoked by their marriage. In other words, someone who gets married may be unable to make a Will, but the act of marrying has similar consequences to making a Will (i.e. by revoking their existing Will in favour of other beneficiaries). 

This is problematic, and can lead to significant issues where someone with diminished mental capacity may have been the victim of a predatory marriage (i.e. where an unscrupulous person befriends the testator, and subsequently marries them to take advantage of the automatic revocation of that person's Will, with the effect that the intestacy rules come into play). 

In these circumstances, the intestacy rules then mean that the new (predatory) spouse is then automatically entitled to some or all of that person's estate on their death. This can be devastating for those involved. 

It is interesting to consider the law in Scotland, where marriage does not automatically revoke a Will. Instead, legal rights allow a surviving spouse to claim a proportion of the deceased’s estate, regardless of the provisions of the Will, and without the need for a court application. Legal rights are, however, limited in scope and only apply to the moveable estate - not to real property - which is arguably what will often be most needed to provide for the surviving spouse. A variation of this might provide one possible solution to the issue. 

In any event, the public’s understanding surrounding the consequences of marriage on a Will should be improved, perhaps in tandem with increasing the public’s understanding of making a Will in contemplation of marriage (whereby the Will is not revoked by a future marriage). 

The Law Commission's consultation raises important questions about the future of Will-making, and the topic requires detailed scrutiny before the status quo is changed. It is hoped that, once the Law Commission publishes its final recommendations, sufficient parliamentary and governmental time will be dedicated to this issue.