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Beware the ‘easy’ will that doesn’t say what you mean

Posted on: 7th November 2017

Nicola Waldman, private client partner responds to the Law Commission’s current consultation on wills.

“The Law Commission’s consultation, which ends this month, aims to review the way we make wills, not least to encourage the 40 per cent of us who do not have one to step up.

“So far, it has focused on what it sees as easing the processes around wills – considering electronic signatures, giving the courts dispensing powers to accept a will as valid even when the formalities for making it have not been followed exactly, such as text and voice messages, and incorporating a new testamentary capacity test as set out in the Mental Capacity Act, which uses modern language and is used in other legal contexts.

“The problem with simply making wills ‘easier’ is that it risks undermining the fact that they remain extremely important documents with significant financial implications. As such, they require serious thought, with the testator (the person making the will) clearly understanding what they are doing,” says Nicola.

“Also, any dispensing power given to the courts to uphold a document as a will must be limited so that wills do not fail where the intention of the testator is absolutely clear,” she adds.

Broadly, the intestacy rules currently provide for the ‘nuclear’ family and the Inheritance (Provision for Family and Dependants) Act 1975 provides for men and women who live together but are not married and those who are financially dependent. With the structure of family units becoming increasingly complex, people’s assets are equally complex, making it more important than ever that a will reflects what you mean it to.

“Most people, for example, might not be aware that marriage currently revokes a will. Failure to understand this rule means that children of a first relationship, say, named in the original will, may get far less (or even nothing) to the benefit of a second spouse – probably not what was intended by the testator.

“Yes, outdated legislation should be updated to reflect the way people run their affairs but not so that there is more risk of litigation from family members or disappointed beneficiaries.

“It’s my impression that wills have been devalued in the minds of the public as something they should get for next to nothing. Perhaps more helpful would be to raise awareness of what happens if you don’t have one and to encourage people to pay reasonable fees to get a will done properly to provide for the people and organisations they care about, rather than leaving it to chance.”

Considering the recommendations from the current consultation, Nicola believes there is the opportunity to go further with certain aspects:

  1. Tightening the rules concerning assets such as joint property, pensions and life insurance passing on death. For many people, this is the bulk of their assets and currently it is possible to pass these with very little formality. The amounts involved can often be quite substantial and comprise most of what someone leaves on death.
  2. Compulsory registration of wills: Many valid wills are likely overlooked because executors and beneficiaries do not know that they exist or where to find them.
  3. There are no proposals to deal with the issue of regulation and so will writing remains an unregulated activity. Many of the proposals may increase the costs of professional will writers because of the increasing burden on professionals to deal with issues such as capacity. In turn, this will make it more expensive for testators and less likely that professionals will be used. Potentially, this will lead to more people using will writers who may not be insured or qualified to deal fully with the matter.

Ends

For further information, please contact:
Kerry Jack or Nicola Pearson at Black Letter Communications on 020 3567 1208 or at
kerry.jack@blacklettercommunications.co.uk or nicola.pearson@blacklettercommunications.co.uk

Notes for Editors

Hodge Jones and Allen

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