When you consider that the vast majority of the law connected with Wills comes from an Act of Parliament that received Royal Assent at the very start of the Victorian era (the Wills Act 1837) and the capacity issue for writing a Will comes from a case precedent in 1870, it will not come as a surprise to any of us that the Law Commission has been evaluating the possibility of reform in this area. The Commission feels that the current legal age of 18 should be lowered to 16.
Keeping Pace with Our Modern Society
The Law Commission believes that the current law surrounding the capacity to write a Will and the formalities involved have failed to keep pace with modern society. These laws were conceived at the start of the Victorian era – no less than 180 years ago – at a time when the requirement to write a Will was usually only a consideration for the more affluent members of the community.
Nowadays, it is said that more people than ever have property that holds a value worthy of being included in a Will. However, it is still thought that around 40% of the adult population in the UK fails to write a Will. Upon their death, this will mean that the person will die intestate, and this can – and often does – lead to no end of additional grief and heartache for the loved ones who have been left behind.
The law of succession also fails to stay abreast of advances in modern technology. The current law originates from a time when your quickest hope for communication would probably derive from a carrier pigeon. Therefore, where are the allowances for the potential testator’s wishes communicated by way of e-mail, voice messaging or even text messages? These are issues that the Law Commission is considering at this present time.
Sixteen-year-olds Have Most of the Same Rights as Adults
When 16-year-olds are able to join the armed forces, marry, make important medical decisions, live on their own and consent to sexual activity, why should they not be able to write a Will that would stand up in a court of law? This is one of the main issues contested by the Law Commission, especially when you learn that the testamentary age is actually an amazingly low 12 years of age in Scotland.
Recently, the heart-rending case of a 14-year-old girl who was suffering from terminal cancer came to the country’s attention. It was this girl’s dying wish to be cryogenically frozen so that she might be brought back to life in a future where such advances in medical technology and practices might exist. Had she lived in a country where the testamentary age was lower – as in Scotland, for example – her mother would never have had to go through the agonising process of pursuing her daughter’s case through the court system. The good news was that her daughter’s wishes were upheld by the court in the end.
Mental Capacity Issues
Another major issue that must be taken into account today is that of dementia. When the main laws of succession were conceived back in the 19th century, very little was known about the condition we now identify as dementia. Although mental capacity was covered to some extent in the law, it did not take note of the fact that more and more people are living longer today in the 21st century and that unfortunately the rate of development of this dreadful disease is growing exponentially. This is why the Law Commission fervently believes that there should be some kind of mental capacity test that will take these considerations into account.
Fewer Official Formalities for the Valid Creation of a Will
At present, as you will know if you have been studying probate law, there are a good number of official formalities that must be strictly observed in order to create a valid Will. In effect, it is as though there will be a “presumption of invalidity” with a Will whenever an executor applies for a Grant of Probate when a testator dies. This is definitely not right and has led to literally millions of people’s wishes failing to be respected as a result of law that was created at a time when this country was altogether an entirely different place.
The Law Commission hopes to see a significant reduction in the official number of rules and formalities needed to create a valid Will. They want to see more of a common-sense approach exercised that respects the clear and obvious intentions of the testator. However, as has already been touched on above, they are not so keen to see this relaxation in the rules extend to any Will documents that may have been originally created electronically.
Many people are bound to hold that the recommendation to lower the testamentary age to 16 appears to make good sense. After all, a 16-year-old is more than capable enough of deciding what should happen to their property if anything were ever to happen to them, especially if they are considered old enough to march off to war. It would also appear that a relaxation in the rules and formalities to create a valid Will may be long overdue.
If you are interested in specialising in Wills and Probate, take a look at the Foundation or Advanced Single Subject Legal courses ILSPA has to offer.