The Telegraph quotes Tamasin Perkins on the Law Commission’s recent report: Modernising Wills Law
The Law Commission's recent report advocates for expanded rights for divorced partners, second spouses, and stepchildren to challenge wills, particularly those involving mutual wills.
Under current law in England and Wales, individuals can leave their possessions to anyone they choose. However, the Inheritance Act 1975 allows financially dependent potential heirs to contest a will if they were excluded. The report suggests enhancing these rights, especially concerning mutual wills, which bind two parties when one dies, often excluding family homes from estate challenges.
Tamasin Perkins, Partner in the Private Wealth Disputes team, shares her views with The Telegraph:
The 1975 Act is a vital piece of legislation for those who have been unfairly left out of a loved one’s Will. But for too long, treating mutual wills as unavailable on a 1975 Act claim has created a loophole that has allowed some estates to sidestep those protections. We’ve seen first-hand how this can lead to unfair outcomes, often for children, step-children and financial dependants.
"Closing this gap, as Recommendation 31 proposes, is a necessary and welcome reform. It will ensure the Act can be applied consistently, and will-planning can no longer be structured to avoid fair claims. That said, the current drafting looks rather imprecise in some areas, and needs tightening to ensure all mutual wills are properly caught.
The proposed changes, if enacted, could lead to larger settlements and an increase in claims, as they would expand the scope of estates subject to challenge. The Ministry of Justice reported a 43% increase in contested wills from 2019 to 2023, indicating growing disputes in probate matters.
The Law Commission's report also suggests validating electronic wills, removing marriage as a factor that invalidates a will, and lowering the age for will-making from 18 to 16. Additionally, it calls for recognising more informal wills and revising rules for disabled or mentally incapacitated individuals making decisions. These recommendations aim to modernise and improve the legal framework surrounding wills, ensuring better protection for vulnerable individuals and addressing the rise in "predatory marriages." The Ministry of Justice has welcomed the report and will consider its recommendations in detail.
Read the full piece in The Telegraph here (subscription required).
