Imagine being able to write your Will by text message, or leaving a voicemail that details how your estate will be distributed.
Sound far-fetched? Think again; a proposed overhaul of inheritance laws may enable far more modern forms of communication to be used for Will writing.
So, is this a welcome modernisation or should it be feared?
“Unclear and outdated”: the inheritance tax law
Some laws are ripe for updating, and The Law Commission has set its targets on inheritance tax, branding the current system both “outdated” and “unclear”.
The present laws date back to 1839 and demand that Wills are written and signed by the ‘testator’, along with two witnesses.
Victorian laws of this kind are having an increasingly tough time keeping up with modern culture. At worst, they result in life’s most important undertakings being cast aside. For example, it’s estimated that 40% of adults die every year without a Will.
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Is the current law putting them off?
The Law Commission wants to soften the rules and strip out some of the formality, and has proposed the following changes to bring Will writing inline with modern expectations:
- lowering the age for Will-making from 18- to 16-years-old;
- providing the Lord Chancellor with the power required to accept electronic Wills;
- relaxing the rules during cases where formal procedures haven’t been followed but the intentions of the Will-maker are clear;
- a full revision of the rules that protect people from making a Will while unduly influenced by someone else;
- applying the Mental Capacity Act 2005 to ensure a person has the wherewithal to make a Will (and offering doctors statutory guidance if the task falls on their shoulders).
The Law Commission is also asking the public what barriers stop them from making Wills and is even considering abolishing the rule that enables them to be revoked after marriage.
The downside of digital Will-making
The new proposals are radical and far-reaching. Beyond the changes we’ve already noted, there will also be a review of deathbed ‘changes of heart’ where someone might detail an argument about their Will in an audio or video recording.
Add to that the suggestion that county and high court judges should be allowed to decide “on the balance of probabilities” whether or not a note or recording is a fair summary of someone’s wishes, and it’s fair to ask the question: will this result in a law that’s too relaxed?
Possibly. The commission itself admits that the changes could result in family arguments as beneficiaries hunt for evidence of proposed Will changes within their relative’s digital communications.
Would you want someone sifting through your email and text messages, no matter how close they are to you?
It should remain proper, that a written Will remains the only legal document representing a persons final wishes.
Protecting the vulnerable
Despite the concerns, it should again be noted that the new laws include provision for elderly and vulnerable people who may feel pressured into creating digital records of their Will-making.
This is encouraging, particularly when you read the current 1870 law’s take on vulnerable individuals:
“…no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his Will in disposing of his property”.
The consultation notes that the above language “appears archaic” and that it’s hard to understand for non-lawyers, hence the suggestion that the far more modern Mental Capacity Act be observed instead.
How do I find out more?
The public consultation on Wills runs from 13th July 2017 to 10th November 2017. If you’d like more information and the opportunity to respond, we recommend visiting this website: http://www.lawcom.gov.uk/project/wills/
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