Death and taxes may be the two certainties in human existence — but legal strife is a subcategory that is rapidly attaching itself to the former.
Battles over wills and inheritance are rolling before the courts in growing numbers as a boom in property prices over the past 30 years has significantly increased the value of previously modest estates.
All of which has heightened attention on the Law Commission’s long-awaited proposals for reform around the 188-year-old legislation that governs wills in England and Wales. In a paper published this month after nearly eight years of consulting, the commission produced a raft of proposals.
Highlights crucially included increasing protections for those who are coerced into making a will. The commission has called for the courts to be able to infer that a will was drafted through undue influence in cases where there is evidence of reasonable grounds of suspicion.
The commission has also recommended that electronic wills be allowed and for a reduction in the minimum age at which a person can make a will from 18 to 16. It wants to see the abolition of the existing rule that a person’s will is automatically revoked when they marry or enter a civil partnership.
To be fair, the public and probate law specialists should have expected a big bundle of reforms after such a long consultation — and for the most part the experts are pleased with what they see.
Emily Deane, the head of government affairs at the Society of Trust and Estate Practitioners (Step), predicts that the proposed reform package would have “far-reaching implications”, particularly around the abolition of the requirement to revoke wills on marriage and civil partnership.
Her organisation highlights that undue influence in will-making remains a “significant concern”, not least because it is difficult to prove — and that litigation as a result is “on the increase”. Step supports the commission’s recommendation to increase the powers of the court to identify and clamp down on this abusive behaviour, including the right to approve or void gifts in wills to cohabiting partners of will witnesses.
The recommendations include shifting the burden of proof to the person or people who will benefit where there are suspicious circumstances around the drafting of a will or amending an existing document.
Hayley Robinson at the law firm Stevens & Bolton describes the proposals around the undue influence test as representing “real progress”, noting that the present legal position “creates significant uncertainty for litigants”.
Another significant proposal from the commission is that the criterion for testamentary capacity — whether a person is mentally capable of drafting a will — should be moved away from what is known as the Banks v Goodfellow test, which is rooted in a court ruling from 1870. Commissioners have recommended that the legal standard should be modernised and aligned with the Mental Capacity Act 2005.
Nicola Bushby, a partner at Boodle Hatfield, welcomes that suggestion, saying that the 2005 test “is the only rational way forward as it is far better aligned with protecting testamentary freedom”. Under modern mental capacity legislation, a testator is presumed to have capacity unless a challenger can prove otherwise. Modernising the law, Bushby says, will “wash away outdated notions and prejudices around capacity”.
Meanwhile, the proposals to amend the law so that marriage or civil partnership no longer revoke wills is seen as a significant success for campaigners who have raised the perils of so-called predatory relationships.
The aim of the reform is to protect elderly or vulnerable people who are induced into a marriage despite lacking the capacity to make that decision. However, Step notes that the legal profession is split on the proposal, with some experts arguing that the move could trigger yet more inheritance disputes and litigation.
Sangita Manek, a partner at Irwin Mitchell, argues that “many people are unaware of [the present position] and fail to update their wills after marriage — particularly in later-life or second marriages — despite having no intention to change their testamentary wishes”. As a result the new spouse can still seek provision under 1975 inheritance legislation.
But Bushby cautions that the commission’s proposals on predatory marriages could still be improved, arguing that it “sidesteps the problem” and “continues to leave victims vulnerable”. She adds: “If there is no will, the predatory spouse would still take the lion share of the inheritance by intestacy.”
Addressing the issue of drafting legally enforceable electronic wills seems long overdue in the modern age. Step welcomes the move, arguing that it will “make wills much more accessible” because only 49 per cent of people in the UK have made their will.
Still, the experts say that electronic wills are one of the most complicated aspects of the reform. Step argues for “robust safeguards to ensure sensitive data is stored securely, and that the public, especially the vulnerable, are protected”. The organisation calls on the commission to lobby to ensure that the software and provisions around electronic wills “are robust against fraud and undue influence”.
