Proposed Changes to the Wills Act 1837 – What Are They?
What is the Wills Act 1837?
The Wills Act 1837 sets out the legal rules for how a person in England and Wales can decide what happens to their assets after their death by making a Will – and what makes that Will valid.
Yes, the law that governs Wills dates back almost 200 years to 1837! The Law Commission has now published recommendations to modernise and reform the Wills Act.
This article outlines some of the key proposed changes…
Electronic Wills
Current Law:
Under the current Wills Act, a valid Will must be: Signed by the person making the Will (the “testator”), in the presence of two independent adult witnesses, who must also sign the Will.
Recommendation:
The Law Commission recommends that electronic Wills should be recognised as valid, provided they meet specific additional formal requirements to ensure security and authenticity.
Mental Capacity
Current Law:
To make a valid Will, a person must have the mental capacity to do so.
Currently, two tests are used to assess this:
- The Banks v Goodfellow (1870) test, which requires that the person:
- Understands they are making a Will and what it does.
- Understands the extent of their estate and what they own.
- Understands who might expect to inherit from them and the possible claims others may bring.
Is not affected by any mental disorder or delusion that influences their decisions.
The Mental Capacity Act 2005 test states that a person lacks capacity if, at the time, they cannot make a specific decision due to an impairment of the mind or brain.
A person is considered unable to make a decision if they cannot:
- Understand the information relevant to that decision;
- Retain that information;
- Use or weigh that information as part of the decision-making process; or
- Communicate their decision.
Recommendation:
The Law Commission recommends that only one test – the test under the Mental Capacity Act – should apply, as it is the more modern and consistent standard.
The Age for Making a Will
Current Law:
A person must currently be 18 years old to make a valid Will. If someone under 18 makes a Will, it is invalid.
This means that if a person under 18 becomes critically ill, they cannot legally decide who will receive their assets – these usually pass to their parents.
Recommendation:
The Law Commission recommends reducing the minimum age to 16 years old, noting that at this age, individuals can already leave school and are presumed capable of making medical decisions.
Marriage and Civil Partnerships
Current Law:
Currently, when someone marries or enters a civil partnership, their existing Will is automatically revoked, unless the Will clearly shows it was made in anticipation of that marriage or partnership.
If no new Will is made, the estate is distributed under the Rules of Intestacy, which set out who inherits and in what order.
Under these rules, the surviving spouse or civil partner currently receives:
- A fixed sum of £322,000, plus
- Half of any remaining estate, with the other half divided among the deceased’s children (or other relatives if there are no children).
Recommendation:
The Law Commission proposes abolishing the rule that marriage or civil partnership automatically revokes a Will.
They believe this will give individuals greater freedom to control what happens to their assets and help prevent so-called “predatory marriages”, where someone marries a vulnerable person primarily to inherit from them.
What Happens Next?
The Law Commission has made several recommendations to update the Wills Act 1837, and the Government has welcomed these proposals, recognising that the law is outdated and needs to evolve.
However, the Government also stresses the importance of ensuring that any reform:
- Protects the elderly and vulnerable from undue influence, and
- Preserves people’s existing freedoms to make decisions about their estates.
Further announcements from the Government are expected in due course.
The author: Charley West
