The Law Commission: Modernising Wills Law Report - a disputes perspective

Our initial thoughts on how the Law Commission's recommendations will impact the nature of will disputes in the High Court…

The Law Commission has today published its 31 recommendations to reform the law of wills in its Report “Modernising Wills Law”, together with a draft bill.

We have been digesting the report and set out some “day one thoughts” on how the proposed changes may impact what we’re seeing on our desks and in the courts… perhaps we will come back to this article in a couple of years’ time following the implementation of the recommendations and see if our crystal ball is on point.

Our top five predictions of what will make our desks fuller

More undue influence claims

Notoriously hard, but increasingly common, we’re pleased to see the recommendations for change here, in theory making such claims easier.  Frequently the isolation of a vulnerable person is a precursor to a new will being made, but this makes obtaining contemporaneous evidence difficult to obtain.  Looking at the “bigger” picture in such claims, a trend seen with probate claims generally, and coming to a sensible outcome gets the stamp of approval from us.   

More claims by spouses if wills are not updated on marriage 

We are really pleased to see the changes proposed to deal with the issue of predatory marriage, being able to void a marriage but not save a will revoked by that said marriage, has been a frustrating anomaly and this being corrected is excellent news. We are concerned however that as a result of this, we will likely see an increase in spousal 1975 Act claims, if people are not signing new wills along with the marriage register. 

More applications to save wills which have failed formalities (and more chance to fail due to increased rules)

An office floor plan, with people’s eye-lines being drawn on, and not quite making the cut, is a depressing way to see a will fail. The changes offer some forgiveness to the rigid formalities currently imposed by the Wills Act 1837. Whilst this may result in fewer challenges to wills on this basis, we can envisage an increase in applications to “save” wills which would otherwise fail.  The additional rules proposed further limiting who can witness wills, will no doubt trip some people up, to help a few more applications along.

Applications under the 1975 Act including property which is subject to “an enforceable mutual wills agreement”

Mutual wills cannot be classed as popular, and we may have been happier to see them dispensed of altogether, but recommendation 31 of the Report introduces property which is disposed of by "an enforceable mutual wills agreement" within the definition of the deceased's net estate for the purposes of the 1975 Act. We wonder whether the wording, as drafted in the bill provided with the Report, might also capture documents which have the effect of creating binding testamentary obligations and whether such arguments might be made by applicants, as we have seen such arguments be successful previously in keeping assets away from potential 1975 Act applicants.  

Disputes arising from Electronic Wills

The Report has introduced a recommendation for Electronic Wills to be permissible for the first time. Our view is that the legislation in this respect has been much overdue and we have seen first-hand the utility of Electronic Wills – particularly during the various UK lockdowns in 2020 and 2021 and the temporary legislation which was put in place. We are in no doubt that disputes will ensue about compliance with the requirements in due course, and over whoever might be standing behind the computer screen directing the testator to do as they were told!

Final thoughts 

One point which the report does not address and to which we think further thought should be given is the requirement within the 1975 Act for the deceased to be domiciled in England & Wales in order to bring a claim. In disputes involving cross-border estates we frequently see that the possibility of a claim under the 1975 Act fall away due to the common law domicile of a testator being elsewhere.

As a final comment, we do think it remains a shame that will writing is not a regulated activity; whilst guidance has been suggested, this does not solve the issue of there being some will writers out there who are unqualified and, from a redress point of view, uninsured. Telling friends they should use a lawyer to write a will because you can sue them if they get it wrong might not be the biggest sell, but it is true.

Up next will be the Government’s opportunity to consider and respond to the Law Commission’s recommendations. The Report sets out that the responsible Minister will respond to the recommendations as soon as possible, with an interim response within six months of publication of the Report and a full response within a year. We will watch this space…