What is being proposed under the Wills reform? And what does it mean for assessing mental capacity to execute a Will?

What is the current law that sets out expectations for making a legally valid Will?

In England and Wales, the law underpinning how a Will must be executed is the Wills Act (1837). It is fascinating how a piece of legislation, 188 years old, still governs the rules and circumstances around making a Will legally compliant. The Wills Act (1837) sets out some legal criteria which must be followed in order to correctly and legally execute a new Will as a testator, including:

• Only a person 18 years of age or over can execute a Will.

• The testator must have testamentary capacity, eg they must be of sound mind, understand what a Will is and when it comes into effect, the extent of their estate, and how they wish to divide this among their chosen beneficiaries. 

• All Wills must be made in writing. 

• The written Will must be signed by the testator personally. 

• Two independent witnesses must observe the testator sign the Will before both witnessing the Will themselves with signatories. These two witnesses cannot be anyone set to benefit in the Will to exclude any suspicion of undue influence being placed upon the testator. 

Under the Wills Act (1837), if any of the above criteria is not met, then the Will can be challenged and scrutinised in Court, and it could ultimately be concluded that the Will is invalid. 

What happens if a person dies without a valid Will

Any person dying without a valid Will, either because the above legal criteria of the Wills Act (1837) was not followed correctly or because they failed to make a Will, would then be subject to their estate being distributed in line with intestacy rules.

Intestacy rules provide a framework for how and to whom the deceased’s estate should be distributed, which can work very well in some cases, especially if the testator leaves behind a widow who is still caring for dependents, for example. However, there are also occasions where intestacy rules prove unpopular or controversial, particularly in cases where a legally married spouse may benefit despite a long term of estrangement prior to the person’s death. Whereas a long-term partner and cohabitee of the person who has died does not set to inherit anything under intestacy rules. Intestacy rules do not take into account the quality, closeness or previous commitment of any particular relationship to the person who has died; they simply provide a hierarchy of who will benefit based on marriage and family line. 

Why is there a proposal to update the Wills Act (1837)

Given the length of time since the Wills Act (1837) and the associated changes in society, the Law Commission of England and Wales has been drafting a proposed reform of the Wills Act (1837). Reasons for this include that modern families do not always have wedded partners and modern families are increasingly blended in many wonderful ways. Advances in technology now allow for the use of electronic signatures in many other sectors, and a rise in reported predatory marriages in which a perpetrator will target an elderly person and pursue them for marriage, knowing that marriage will revoke any previous Will and make them the primary beneficiary.

Under present law, the testator and witness signatures must be done in person, and virtual witnessing is not permitted, nor is any use of an electronic signature by the testator or witnesses. There was a small window of time during Covid-19 whereby wills could be remotely witnessed, and the notion continues to provoke much controversy. Some applaud the increased convenience virtual witnessing could provide, while critics continue to speculate that the virtual/electronic testator and witness signatories may lead to an increase in covert coercion of testators by beneficiaries who are then able to hide behind computer screens. 

Critics also point out that the continued use of the Banks versus Goodfellow test (1870) for assessing testamentary capacity is less clear and robust than the Mental Capacity Act (2005). The Mental Capacity Act (2005) became statutory legislation in 2005 with its associated Code of Practice for assessing mental capacity in England and Wales, setting a standard of best practice and guidelines for mental capacity assessments.

The Mental Capacity Act (2005) sets out a standardised framework for assessing mental capacity for any decision based on the criteria that the person must understand, retain, weigh, and communicate the relevant information for the decision to be made. The Mental Capacity Act (2005) allows for a conclusion of incapacity for any particular decision if the person cannot understand, retain, weigh, or communicate the relevant information due to an impairment of or disturbance in the mind or brain. In contrast, the Banks versus Goodfellow test dates back to a Court case in 1870, lacking a robust and standardised Code of Practice for assessors, unlike the Mental Capacity Act (2005).

What is the Law Commission of England and Wales proposing to change when reforming the Wills Act 1837? 

• Removal of automatic revocation of current Will if marrying or entering into a Civil Partnership. To reduce the threat of predatory marriages, the Law Commission is proposing that getting married will no longer revoke an existing Will. If this modernisation were adopted into law, it would be the case that there would no longer be an automatic revocation of the current Will in favour of the new spouse as beneficiary upon marriage.  
  
• Electronic Wills: Electronic Wills to be introduced in line with advances in technology and electronic signatures. This means it could be possible for a testator to execute and sign their Will, or for witnesses to now sign digitally. 
  
• Lowering the age to execute a Will to 16 years. Reducing the legal age to make a Will from 18 years of age to 16 years of age. This takes into account that some teenagers may be suitably mature enough to execute a Will from 16 years of age.
  
• Standardising the legal test for mental capacity to execute a Will: Changing the legal test for mental capacity to execute a Will from the common law test of Banks v Goodfellow (1870) to the Mental Capacity Act (2005) to line up with how mental capacity is assessed in other legal areas. 
  
• Enhancing protection for testators subject to undue influence: Increased safeguards around identifying and remedying actions where undue influence upon a testator is thought to have prejudiced how the testator executed their Will. 
  
• Clarity of who can witness a Will to minimise risk of conflicts of interest: New guidelines with stricter control on who can be a witness to a Will, such as not allowing the cohabitee of a beneficiary in the Will to act as a witness, thus reducing the possibility of a conflict of interests when acting in the role of witness to a Will. 
  
• Pathways for having an informal Will legally recognised: Discretionary legal powers for a testator’s wishes for the distribution of their estate upon their death in cases where there is robust evidence of the testator’s intentions, but not all the current statutory criteria have been stringently followed to create a ‘formal Will’.

What does this mean for mental capacity assessments to enter into a new Will? 

It’s important to note that the Wills Reform recommendation made by the Law Commission of England and Wales is not legislation, nor does it change any of the current law and guidelines around executing a Will or assessing testamentary capacity at the present time. The final report will now need to be considered by Parliament, including the House of Commons and the House of Lords, before finally receiving Royal Assent and being implemented into law and practice.

For now, business continues to run as usual, following the Wills Act (1837) and utilising the common law test Banks versus Goodfellow, for all those drafting Wills on behalf of a testator or those completing mental capacity assessments with those wishing to enter into a new Will. 

At Thornton & Lee, we always approach all our assessments using best practice to work with and get the best out of the person being assessed. Whilst we will continue to use the correct test of Banks versus Goodfellow (1870) when completing testamentary assessments, you can rest assured that we always ensure we have an excellent grasp of the person’s unique needs and circumstances ahead of the appointment.

Our skilled and experienced assessors will professionally place the person being assessed at ease, so you know you are in safe and reassuring hands. If you are interested in discussing instructing us for a testamentary capacity assessment, fill out our contact form here and a friendly member of the team will promptly be in touch to discuss your assessment needs.