We’re concluding our overview of the Law Commission’s Final Report Modernising Wills Law. This final instalment in the series explores the remaining chapters of the report, covering children making wills, interpretation and rectification, ademption, revocation, mutual wills, donationes mortis causa, and guardianship appointments.
As with the previous articles, 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.
Children Making Wills
Currently, the minimum age to make a will is 18, with limited exceptions for privileged wills. The Law Commission recommends lowering the minimum age for making a will from 18 to 16. This would align with other areas of law where 16-year-olds are recognised as having legal capacity, such as consenting to medical treatment or entering into contracts.
In addition, the Law Commission proposes that the Family Court should have the power to authorise a child under 16 to make a will if they are deemed “Gillick competent” that is, if they have sufficient understanding and intelligence to make the decision. This would provide a safeguard for exceptional cases.
This change would will be particularly beneficial for those with significant assets or those who may want to avoid an estranged parent inheriting under intestacy.
Interpretation and Rectification
The Law Commission recommends a new interpretive provision to address situations where a testator leaves a gift to a non-charitable organisation that has subsequently merged or been reconstituted. Under current law, such gifts may fail due to the doctrine of lapse if the original organisation no longer exists at the time of death
To remedy this, the Law Commission proposes that the successor body should be treated as the intended recipient of the gift, provided that there is no contrary intention in the will. This would ensure that the testator’s intentions are not defeated by administrative changes beyond their control. This reform is particularly relevant for gifts to clubs, societies, or associations that may undergo restructuring.
The Law Commission also recommends broadening the scope of rectification. At present, rectification under section 20 of the Administration of Justice Act 1982 is limited to:
- Clerical errors; or
- Failures to understand the testator’s instructions.
The Law Commission recommends expanding this to include cases where the will fails to carry out the testator’s intentions due to a failure by the testator or the drafter to understand the meaning or legal effect of the words used.
This would allow courts to rectify mistakes that arise not from miscommunication, but from a misunderstanding of legal language or consequences. For example, if a testator uses a term they believe has a particular legal effect, but it does not, the court could rectify the will to reflect what the testator actually intended.
Ademption
Ademption occurs when a specific gift in a will fails because the item is no longer in the testator’s estate at the time of death. The Law Commission recognises that this doctrine can lead to harsh and unintended outcomes. To address this, the Law Commission recommends three key reforms:
1. Currently, if a deputy appointed by the Court of Protection disposes of a gifted asset, the gift does not adeem. However, if the same action is taken by an attorney under a Lasting Power of Attorney (LPA) for property and finance, the gift does adeem.
The Law Commission recommends aligning the treatment of attorneys and deputies. If an attorney acting under an LPA disposes of a gifted asset, the gift should not adeem. This change would ensure consistency and fairness, recognising that both attorneys and deputies act on behalf of individuals who lack capacity.
2. Where a testator enters into a contract to sell a gifted asset or grants an option over it but dies before completion, the gift currently adeems. The Law Commission proposes that in such cases, the gift should not adeem. Instead, the beneficiary should receive the proceeds of sale or the benefit of the option, subject to contrary intention in the will.
3. In rare but significant cases where a gifted asset is destroyed at the same time as the testator’s death (e.g. in a fire or accident) in circumstances where it cannot be determined which happened first, the Law Commission recommends a presumption that the testator died first. This would prevent the gift from failing due to ademption, ensuring that the beneficiary is not unfairly penalised by circumstances beyond anyone’s control.
Revocation
Under current law, marriage or civil partnership automatically revokes a will unless it was made in contemplation of that event. The Law Commission recommends abolishing this rule entirely.
This change is primarily aimed at preventing financial abuse through “predatory marriages,” where a vulnerable person is coerced into marriage which will then revoke existing wills.
Removing automatic revocation would ensure that a testator’s existing will remains valid unless they actively choose to change it. This reform would also bring England and Wales in line with other jurisdictions that have already abolished this rule.
Mutual Wills
Mutual wills are made under an agreement not to change them after one party dies. The Law Commission recommends retaining mutual wills but amending the law so that property subject to a mutual wills arrangement should be available for claims under the Inheritance (Provision for Family and Dependants) Act 1975. This will ensure that dependants are not unfairly excluded due to a mutual wills agreement.
Donationes Mortis Causa
This doctrine allows for deathbed gifts that bypass the usual formalities of will-making. Despite its complexity and limited use, the Law Commission does not recommend reform. They acknowledge its rare application but believe it still serves a useful purpose in exceptional cases.
Guardianship Appointments
The final chapter considers the requirement that guardianship appointments in wills be dated. The Law Commission concludes that while undated appointments can cause issues, requiring all wills to be dated would be disproportionate. The issue is considered too minor to justify legislative change.
WillPack’s Opinion and Conclusion
We strongly support the Law Commission’s proposals covered in this article. The reforms to revocation are particularly welcome, as the current rule on marriage revoking a will is potentially dangerous given the current knowledge on predatory marriages. Abolishing it would better protect vulnerable individuals.
The recommendations on children making wills are also sensible. Although we wouldn’t expect there to be a large number of children making wills, they will offer a much needed option for those with strong wishes on avoiding the intestacy rules.
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