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Good will out

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Gary Rycroft considers the Law Commission’s new consultation on wills

The Law Commission’s consultation paper, ‘Making a Will’, made headlines upon its publication last month, some of which have been a little misleading. One daily broadsheet ran the headline ‘Make your will by text’, which is not actually what the commission has suggested. It has actually suggested that, in certain extreme circumstances, it should be permissible for a text message or some other evidence of the intention of the deceased to be used as evidence of how the deceased would want their estate to pass on death.

There is a precedent for this in Canada – a farmer who was mortally wounded in a tractor accident wrote his testamentary wishes out on the fender of the vehicle in which he was trapped and while bleeding profusely from his legs. He scratched on the fender: ‘In case I die in this mess, I leave all to the wife. CECIL GEORGE HARRIS.’ Harris was found nine hours after the accident and rushed to hospital, where he died shortly thereafter.

A few days later, a man investigating the accident site noticed the fender. The fender was removed and admitted to probate as Harris’ last will and testament.

I hope that the authors of the Wills Act 1837 would be proud of the fact that it is still on the statute book in 2017 and, to my mind, still doing a very good job. But there is always room for improvement, and the Law Commission has raised some points about how society in the 21st century should look at making the law around making wills easy to navigate and accessible for all. After all, around 40 per cent of adults die without a valid will; putting aside issues such as the unwillingness of people to contemplate their own mortality, there is clearly room for improvement with regard to the number of people who are making wills.

A farmer who was mortally wounded wrote his testamentary wishes out on the fender of the tractor in which he was trapped

Some of the relevant and important issues raised by the Law Commission include whether or not we should update the law relating to testamentary capacity and make it more akin to the Mental Capacity Act 2005, than the tried and tested formula of Banks v Goodfellow (1870). There is also the question of whether the minimum age for making a will should be reduced to 16. My 16-year-old daughter certainly thinks so, although my regular funding of her lifestyle would indicate that she does not have much at this point to leave! However, the serious point is that many young people who have received the benefit of a settlement following an accident or other adverse event would very much benefit from being able to make a will. The Law Commission also raises the question as to whether or not marriage should revoke a will, and looks at some issues relating to the challenges to wills which arise from ‘lack of knowledge and approval’.

As I say, the consultation raises a number of interesting and pertinent questions, which the Law Commission would like all of us to respond to. You may respond to all of the questions, or just the ones you have a particular opinion on. I would urge Section members to respond, either as individuals or as part of a broader response submitted by their own firm. I know things like this are time-consuming, but to be part of law reform in an area of law in which we practise in is undoubtedly a tremendous opportunity, and I must admit that the geeky side of me finds it quite thrilling.

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