Law reform could cause more challenges to wills

National organisation Solicitors for the Elderly has raised concerns at proposals to overhaul the laws governing will writing claiming, saying reform will result in more court action.

Responding to proposals from the Law Commission, SFE said it was ‘seriously concerned’ that people expressing their wishes, especially older and more vulnerable people, would be severely compromised or have decisions regarding their wills spuriously overturned.

In a consultation document published last week, the commission said it wanted to overhaul the ‘Victorian-era laws’ surrounding wills.

Among its proposals are to adopt the Mental Capacity Act 2005 as the benchmark for establishing if someone has the right state of mind to prepare a will, making provisions for electronic wills, and allowing courts to accept a text message or email as a valid will in exceptional circumstances.

The consultation also hinted at making the law less bureaucratic. It said that current laws mean several procedures have to be followed which in some instances result in courts not recognising a will where the correct procedure has not been followed even if the testator’s intentions were clear.

Claire Davis, director of Solicitors for the Elderly, said: ‘Wills are extremely powerful documents and it is important people understand the potential risks we are exposing ourselves and our loved ones to without seeking professional legal advice. If implemented, we foresee these proposals resulting in an increase in challenges from disgruntled or dissatisfied relatives, which will only serve to increase court action and all its attendant costs.’

Law Society president Joe Egan, however, said that parts of the consultation showed ‘immediate promise’ and would likely to get a positive response from solicitors. ‘Others, such as enabling wills to be made electronically in the future, raise important but challenging questions, especially on how safe electronic wills would be from fraud or undue influence against vulnerable people,’ he added.

The commission is also proposing reforms including ditching the term ‘testator’ in favour of ‘will-maker’ and lowering the minimum age for making a will from 18 to 16.