Following on from our article last week, we’re continuing our overview of the Law Commission’s Final Report ‘Modernising Wills Law’. The Final Report contains a range of different recommendations on where the law on wills should, and should not, be updated. In this article, we delve further into those proposals, including changes to the formality requirements, introduction of a dispensing power and changes to rules invalidating gifts to witnesses.
As with last week, it is important to note that these are currently only recommendations. They do not yet constitute changes to the law. There is no guarantee that the government will adopt the draft Bill, and if so that it will pass through Parliament in its current form without amendments.
Statutory Wills
The Court of Protection can make a will for a person who lacks capacity, known as a statutory will. The Law Commission’s project considered whether amendments are required. We do not offer statutory wills ourselves so we will not cover these in great detail. The Law Commission have made several recommendations:
- S4(6) Mental Capacity Act 2005 (MCA) should be amended to require that anyone making a best interests determination must give particular weight to the person’s wishes and feelings.
- The age limit to make a statutory will be reduced from 18 to 16.
- Limitations in the MCA be removed so that gifts in a statutory will can be made in relation to immoveable property located in other jurisdictions or movable property from foreign-domiciled testators.
- No changes be made relating to statutory will proceedings.
Supported Will-Making
The Law Commission explored the possibility of introducing a formal supported will-making scheme to benefit people who could have testamentary capacity if they were provided with appropriate support. While they agree support is necessary, they do not recommend a specific will-making scheme. Instead, they support a recommendation from the Mental Capacity and Deprivation of Liberty Report for a general supported decision-making scheme.
Formality Requirements
The Law Commission examined the current formalities as required in Section 9 Wills Act 1837 to determine if they were acted as a deterrent or barrier to will making, and whether any elements required reform.
The majority of consultation responses did not believe the formality requirements had any deterrent effect. Even among those who did, other factors were considered more significant. Therefore, the Law Commission does not recommend large scale changes to the formality rules. However, they note that their recommendation of a dispensing power (discussed later) will assist where there are clear wishes but the will does not meet the required formalities. The Law Commission do have some targeted recommendations.
S9 Wills Act 1837 requires a witness to the will to “attest and sign” the will or to acknowledge their signature in the presence of the testator but no form of attestation shall be necessary. In the 2017 Consultation, the Law Commission had provisionally recommended removing reference to attestation in S9(d)(i). Following responses to the consultation, they now recommend retaining the requirement for witnesses to attest when signing the will. Further guidance on what witnesses must attest to is included in the draft Wills Bill.
Privileged wills should be retained, but their scope narrowed to only apply to members of the British Armed Forces on active service, or civilians subject to service discipline who would be on active service if enlisted. The term “service will” is adopted as a more helpful description.
The Law Commission do not recommend:
- an introduction of holograph wills (wills written entirely or materially and signed in the testator’s hand).
- Mandatory registration of wills, due to concerns on creation of additional barriers, practicality and cost.
Dispensing Power
A number of foreign jurisdictions have “dispensing powers” which allow courts to recognise a will as valid even if it does not comply with all formalities. The Law Commission proposed introducing such a power in 2017.
There are two types of dispensing powers:
- A substantial compliance doctrine power allows the courts to validate a will if the formalities were followed closely enough to fulfil their purpose.
- An intention-based power allows the courts to validate a will if the court is satisfied it reflects the testator’s testamentary intentions, regardless of compliance with formalities.
After considering the responses to the consultation and having conducted further research into dispensing powers in other jurisdictions, the Law Commission recommends introducing an intention-based dispensing power. While concerns were raised about potential increases in litigation, evidence from other jurisdictions suggests this has not occurred disproportionately.
The recommended power should:
- be exercisable by the court;
- apply to records demonstrating testamentary intention (including electronic documents, sound and video recordings); and
- apply when the deceased person dies after the coming into force of the power, including to records created before enactment.
Validity of Gifts
The Law Commission reviewed rules on the validity of gifts, particularly those to individuals who sign a will on the testator’s behalf and to witnesses.
Currently, a person who signs a will on the testator’s behalf can be a beneficiary. In contrast, a beneficiary, or their spouse or civil partner, cannot witness a will and doing so leads to their gift being void.
In 2017, the Law Commission expressed concern that a beneficiary could sign a will on behalf of a testator and recommended treating them the same as witnesses. The overwhelming majority of responders to the consultation agreed.
They also explored extending the rule to void gifts to cohabitants of witnesses and other family members of witnesses. A significant majority supported voiding gifts to cohabitants of witnesses, bringing them in line with spouses and civil partners and offering safeguards against potential fraud and undue influence. There was however less support for voiding gifts to other family members of witnesses.
A “saving power” to potentially allow a void gift to a witness or person signing a will on the testator’s behalf was also explored. Given that the invalidity rules are being extended, the Law Commission believe such a power would be an important balance.
The Law Commission therefore have the following recommendations:
- A gift to the cohabitant of a witness should be void.
- A gift to a person who signs the will on the testator’s behalf, or to their spouse/civil partner/cohabitant, should be void.
- A saving power be introduced to give power to courts to save a gift to a witness, a person who signs the will on the testator’s behalf, or such a person’s spouse/civil partner/cohabitant if the court considers it just and reasonable to do so. The court would have regard to the conduct of the person in relation to the execution and/or proving of the will.
For this purpose, cohabitant would have the same meaning as from the Family Law Act 1996: “two persons who are neither married to each other nor civil partners of each other but are living together as if they were a married couple or civil partners”.
WillPack’s Opinion and Conclusion
WillPack strongly supports the proposals to expand the rules on invalidating gifts to witnesses and those signing on behalf of the testator, as these changes offer greater clarity and protection against undue influence. While we acknowledge the potential benefits of a dispensing and saving power, we remain cautious about the risk of increased litigation and the uncertainty it may introduce. As always, we will continue to monitor developments closely.
Keep an eye out in the coming weeks for the next article in this series where we will explore more of the Law Commission’s recommendations, including their proposals on electronic wills.
If you have subscribed to our Quiz Membership 2025, please find this article’s quiz here. You must be signed into the partner area of our website to access this.
© Trust Wills & Probate Limited t/a WillPack. All rights reserved.
You must be logged in to post a comment.