Law Society response: Making a Will. November 2017

Transcription

1 Law Society response: Making a Will November

2 Introduction The Law Society is the professional body for the solicitors' profession in England and Wales, representing over 170,000 registered legal practitioners. The Society represents the profession to parliament, government and regulatory bodies and has a public interest in the reform of the law. We welcome the opportunity to respond to the Law Commission's (the Commission) consultation on Making a will. In preparing this response, we have sought the views of our specialist Wills and Equity, the Mental Health and Disability, Family Law and Children's Law committees. Executive summary The legal framework for making a will has been largely unchanged since the introduction of the Wills Act in Although the Act has proved to be a strong foundation, imaginative judicial interpretation has often been required to apply its provisions to modern circumstances, and the rise in disputed wills demonstrates that there is a need to reform this area of law. We support most of the Commission's proposals to bring the law on making a will into the 21st century. Our key comments are provided below to ease navigation of this response. Capacity We support the Commission's proposal to adopt the definition in the Mental Capacity Act 2005 (MCA 2005) for testamentary capacity. Adopting this legal test will address the current issues identified by the Commission where different tests are applied depending on whether a testator is executing a will or if one is being made once a testator loses capacity to make a will themselves. We strongly agree that a Code of Practice would be helpful in providing guidance to the court, legal and other professionals as to how capacity should be assessed. A clear Code of Practice, written in plain English will also inform lay persons who may be supporting loved ones to make a will or who may question how their capacity may be assessed. Statutory wills We agree that it is sensible to keep the making of a statutory will within the jurisdiction of the Court of Protection. However, we would highlight that a comprehensive review of the law of wills should include a full review of the framework and operation of statutory wills. We share the Commission's view that the fact a person had not made a will before losing capacity should not preclude the making of a statutory will on their behalf. Many people make a will in later life and it cannot be assumed that a person makes an active choice not to make a will, rather than they simply have not taken active steps to do so. Formalities We find it concerning that 40% of people die without making a will each year. We therefore agree with the Commission s proposal for courts to be given a dispensing power to recognise and give legal effect to a testator s intentions where strict formalities for making a valid will have not been followed. 2

3 However, we recognise that wills are discretionary and legal reform can only go so far. There are several reasons why individuals may actively choose, or remain indifferent to making a will, including age and cultural perceptions of death. Electronic wills To encourage the take up of wills, we recognise that there is a need to improve the methods available to approach the issue. We are therefore not opposed to the possibility that wills may, at some point, be made electronically. However, we urge caution against proposals to usher in fully digital processes for making wills at this point in time. Without access to a detailed proposal of how a digitalised system might operate in practice and guidance to accompany such, it is difficult to picture how this could be implemented. We strongly recommend that, should the infrastructure for electronic wills become available, a comprehensive consultation exercise should be carried out to assess the need for such, as well as the risks and benefits it presents. We look forward to working further with the Commission and government to consider and implement next steps to bring these proposals into law. 3

4 Question 1 In any new legislation on wills should the term testator be replaced by another term? If so: (1) should the term that replaces testator be will-maker? or (2) should another term be used and, if so, what term? (paragraph 1.9) Yes: No: X Other: We do not agree that there is a need to replace the term testator and we believe the suggested term will-maker is too ambiguous. Testator is a legal term, and used only in relation to wills and succession. Whilst this means it does require an explanation for those unfamiliar with the term, it is unique to the function of will-making. There are various other terms used in this legal area, such as executor, legatee and beneficiary. Furthermore, a departure from the testator term would also leave terms such as testate, intestate and intestacy without the root from which they derive. Any review of the term testator should incorporate a review of other legally distinct terms in this area. If the Commission decides to introduce a new term, we suggest that any such term is clearly defined between the testator and other parties who may be involved in the process for making a will. A statutory definition could clarify that the term also includes testatrix, or clarify that the term is intended to be gender-neutral. Question 2 We ask consultees to tell us about their experiences of the impact, financial and otherwise of the: (1) preparation, drafting and execution of wills; and (2) disputes over wills following the testator s death. (paragraph 1.36) We endorse the Commission's objectives for reform outlined at 1.30 and regret that we are unable to provide evidence of the nature sought. However, in our 2010 response to the Legal Services Board's investigation into will writing, we provide case examples and analysis of some of the most common issues in this area, which includes poor quality drafting, dishonesty, fraud, and significant costs. Whilst we would not wish to restrict the ability of testators to draft their own wills, we would welcome a review of consumer protection in this market. 4

5 Question 3 We provisionally propose (1) that the test for mental capacity set out in the Mental Capacity Act 2005 should be adopted for testamentary capacity; and (2) that the specific elements of capacity necessary to make a will should be outlined in the MCA Code of Practice. Do consultees agree? (paragraph 2.73) We agree with both proposals. We see no reason why two definitions should operate depending on the circumstances in which the will is made. As illustrated by case law, having two separate tests leads to confusion and results in cases in which the Court of Protection itself has to apply two different tests depending on whether it is looking at an individual s current capacity to make a will, or their historical testamentary capacity in circumstances where it is deciding whether there is sufficient doubt about an existing will that it is in a person s best interests to make a statutory will on their behalf. Introducing a single test will ensure that developments in relation to the support of exercise of legal capacity mandated by the UN Convention on the Rights of Persons with Disabilities are translated directly across into questions of testamentary capacity. In particular, it will mean assuming that the principles contained in s.1 (1) - (3) MCA 2005 are also to be applied (which we suggest that they should) that focus must be placed upon supporting the individual to take their own decision. It will also ensure that the two jurisdictions march hand in hand as regards the identification of those individuals who may be capable of taking their own decisions but are in some way vulnerable and subject to coercion or undue influence (i.e. where the material incapacity to make a decision does not stem from an impairment or disturbance in the functioning of the mind or brain, but rather from the influence of another). We also note that, as a matter of language, the Banks v Goodfellow test retains terminology from the 19 th century which is ill-fitted to the 21 st century by comparison with the language of the MCA We strongly recommend that the specific aspects of capacity necessary to make a will should be contained in a Code of Practice. The Banks v Goodfellow test undoubtedly provides the starting point for the identification of the relevant information. Question 4 We invite consultees views on whether, if the Mental Capacity Act 2005 is not adopted as the test for testamentary capacity, the Banks v Goodfellow test should be placed on a statutory footing. (paragraph 2.85) We would prefer the adoption of the definition in the MCA We do not consider that there is a need to place the Banks v Goodfellow test on a statutory footing. 5

6 Question 5 We invite consultees views on whether any statutory version of the test in Banks v Goodfellow should provide: (1) a four limbed test of capacity, so that the relevance of the testator s delusions or disorder of the mind (or other cause of capacity) is not confined to understanding the claims on him or her; (2) that a testator s capacity may be affected by factors other than delusions or a disorder of the mind; and (3) clarification that the testator must have the capacity to understand, rather than actually understand, the relevant aspects of a will. (paragraph 2.85) We are not convinced that there is a need to place the Banks v Goodfellow test onto a statutory footing. Question 6 We provisionally propose that if a reformed version of the Banks v Goodfellow test is set out in statute it should be accompanied by a statutory presumption of capacity. Do consultees agree? (paragraph 2.88) In light of our earlier response to question 3, we consider that the adoption of the statutory test under the MCA 2005 must carry with it the statutory presumptions contained in sections 1(1) - (3) of the Act, section 1(1) being the statutory presumption of capacity. Question 7 We provisionally propose that the rule in Parker v Felgate should be retained. Do consultees agree? (paragraph 2.95) 6

7 In our view, there are finely balanced arguments in favour of retaining or disposing of the rule in Parker v Felgate. We note that the rule would be in line with a move from a formalist approach to wills, with a strict emphasis on compliance with prescribed formalities to the preferred functionalist approach, which can save an otherwise doomed will and so fulfil the testator s earlier established wishes and instructions. We therefore support retaining the rule. Question 8 We provisionally propose that: (1) a code of practice of testamentary capacity should be introduced to provide guidance on when, by whom and how a testator s capacity should be assessed. (2) that the code of practice should not be set out in statute but instead be issued under a power to do so contained in statute (which may be that contained in the MCA should the MCA test be adopted for testamentary capacity). Do consultees agree? (paragraph 2.120) We strongly support the proposal to introduce a Code of Practice, as in our view, this is a vital accompaniment to any statutory test of capacity. There are many matters which it would not be practicable to set down in primary legislation, but which need to be addressed in order to ensure that the underlying thrust of the legislation is carried through in practice. Many practitioners have greater recourse to the MCA Code of Practice than to the underlying legislation. For these groups of professionals, there would undoubtedly be an expectation that a Code of Practice would be issued to accompany any codification of law in this area. We agree that any accompanying Code should not be contained in legislation as this would render it inflexible. We recommend that an accompanying Code should be issued under a statutory power. It would be logical for the code to be issued under section 42 if the MCA test is adopted, although we make two observations: 7

8 1. Careful thought is required - including consultation at a later stage when the power to make a Code has been enacted - as to whether it is better for there to be one MCA Code of Practice with one chapter on testamentary capacity, or whether it is better to have a standalone Code for testamentary capacity. One powerful argument in favour of an all-encompassing Code being that it reinforces the message that capacity would be unitary. 2. It is crucial that any Code of Practice is kept under review with a commitment (and resource) to update regularly. The main MCA Code of Practice has never been updated since it was published 10 years ago, and is now substantially out of kilter with case-law. Question 9 We provisionally propose that the code of practice should apply to those preparing a will, or providing an assessment of capacity, in their professional capacity. Do consultees agree? (paragraph 2.120) This would reflect the reality that it is only possible to place so many demands on those who are acting in a formal capacity. We suggest that the Code should apply to those acting in a professional capacity under a retainer or for remuneration, as these professionals should expect to be held to a higher standard than volunteers. Similar provisions apply in relation to the MCA Code of Practice (see section 44 (4) (e) and (f) and, generally, s.42 provides a useful starting point for the drafting of any legislative provisions relating to a potential Code. Question 10 We invite consultee s views on the content of the code of practice. (paragraph 2.120) The Code of Practice should enable practitioners to identify when, by whom and how testamentary capacity should be assessed. It should offer practical guidance, with case studies to illustrate how guidance should be applied in a wide range of real life situations. It should also address the issues faced by the professional instructed in the preparation of the will and the 'expert' called upon to give a professional assessment of the testator's capacity. 8

9 As suggested in the consultation document, the Code should include details of indicators (or red flags) which will warn the practitioner that capacity may be an issue. The examples given in the consultation (such as where the will is being made shortly following a bereavement or after a diagnosis of dementia) should form part of a comprehensive list of possible warning signs that prompt a practitioner to consider the possible need for further consideration of capacity by a medical or other expert. The Code should include a detailed explanation of the test, and how to apply it, with sample questions (for lawyers and medical and other professionals) to put to a testator, with examples also of how the testator s response may or may not indicate a finding of capacity. It may also be useful for the Code to set out how to instruct the professional, (by suggested sample correspondence) and how to examine any opinion then provided, to test its robustness and full compliance with the instructions and the relevant test, and its accurate and direct applicability to the specific testator. As the Code will be used by the medical or other professionals asked to provide an opinion on testamentary capacity, it should include guidance on when and how that professional might respond to that request. It would be helpful if the Code might also address how to maximise capacity, with practical guidance on matters such as ensuring the right environment and other conditions to support the testator. It would also be useful if the Code included guidance on the more unusual situation, such as how to determine capacity for a person with very limited communication abilities, and the appropriate use of other professionals, such as interpreters, speech and language therapists, etc, to support communication. As suggested in the consultation, the code should also include guidance on recording and retaining both the information elicited and a note of how that information relates to the determination of capacity. There can be reluctance on the part of medical and other professionals to provide their opinion on testamentary capacity. For example, currently providing such capacity assessments is not part of a GP s contract. This can make it very difficult for a practitioner on notice that capacity may be an issue to secure the supportive evidence they need to complete their retainer in a timely manner. Specific guidance within the code (which is addressed to medical and other professionals as well as lawyers) may help to address this issue, by normalising the provision of an assessment by an expert and supporting the expert in responding and providing their opinion (again by use of case studies and examples). We would welcome further engagement with the medical profession on how this could work in practice. Question 11 In principle, a scheme could be enacted allowing testators to have their capacity certified by a third party. We provisionally propose that a certification scheme should not be enacted. Do consultees agree? (paragraph 2.131) 9

10 For the reasons set out in the consultation, in paragraphs to 2.130, we agree that a certification scheme should not be enacted. It may be that a certification scheme would provide a useful safeguard for those testators who choose to make their own will (rather than seek professional advice). However, if the certificate could be provided (as for an LPA) by a person who has known the testator for a period of time, and without any relevant skills, it may not provide any meaningful protection against a challenge on the grounds of lack of capacity. Question 12 We take the view that reform is not required: (1) of the best interests rationale that underpins the exercise of the court s discretion to make a statutory will; (2) of the way in which that discretion is exercised; or (3) to restrict the circumstances in which a statutory will can be made. Do consultees agree? (paragraph 3.38) While we note the Commission's concerns around the best interest test, we agree that it would be sensible to keep the making of a statutory will within the jurisdiction of the Court of Protection and the framework of the MCA 2005, rather than establishing a new procedure. In our view, the General Comment is concerned with objective best interests rather than decisions based on a best interpretation of the person's will and preferences. Recent case law in the Court of Protection has placed a growing emphasis on subjective rather than objective factors in making best interests decisions, which moves closer towards a best interpretation of will and preferences approach recommended by the CRPD Committee. We support the recommendations of the Commission in its report on Mental Capacity and Deprivation of Liberty to effectively codify this approach by making a statutory amendment to place particular weight on the person s wishes, feelings, values and beliefs. To fortify this recommendation against potential slippage backwards towards objective factors, such as being remembered for having done the right thing or moral correction, the Commission could recommend that any sections in a revised Code of Practice dealing with statutory wills could address these issues. We note the Commission's concern that the distribution of assets may partly be guided by a desire to forestall potential litigation under the Inheritance (Provision 10

11 for Family and Dependents) Act 1975 for family provision. Since many people making ordinary wills may be advised by solicitors to leave some assets to those with a potential claim for family provision, and may choose to follow this advice, this issue could be considered through the lens of the choice the person would be likely to have made if given this advice. A complementary approach to maximise preservation of testamentary freedom would be to address the risk of post-death litigation depleting the person s estate, by creating a permission filter for challenges to a statutory will. However, if there is evidence of past intentional intestacy, or clear evidence that the testator would be happy with the outcome under the intestacy rules, then it may be that an early discussion with the Official Solicitor may lead to a decision not to proceed with an application for a statutory will. We share the Commission s view that the fact a person had not made a will prior to loss of capacity to do so should not preclude the making of a statutory will on their behalf (paragraph 3.37, responding to concerns expressed by Harding, outlined at paragraph 3.28). Many people make a will later in life, and it would be unfair to penalise those who have not done so before an accident or illness affecting their mental capacity intervened. It cannot be assumed that a person makes an active choice not to make a will, rather than simply has not taken active steps to do so. A change in circumstances may warrant an application to the Court. For example, where the testator's assets have increased and appointing executors and trustees in a statutory will might protect those assets on death and ensure the efficient administration of their estate. Question 13 Consultees are asked whether there are reforms that could usefully be made to the procedure governing statutory wills with the aim of reducing the cost and length of proceedings and, if so, what those are? (paragraph 3.41) The concerns raised by the Commission about the cost and duration of Court of Protection proceedings to make a statutory will echo wider concerns about cost and delay in the Court of Protection. They should be considered within the context of whether the court itself, and its associated procedures, require reforms that will reduce costs and delays. 11

12 The Commission states that concerns over length and cost of proceedings may arise, at least in part, from resource constraints upon the Official Solicitor. The Society would be happy to assist the Official Solicitor in any review exercise which may help to streamline processes and reduce delays. For example, the Official Solicitor might wish to consider raising awareness of the merits and understanding of its processes. We have heard that the initial applications, if completed to a sufficiently thorough standard in accordance with Practice Direction 9F, help to reduce costs and delays. If it is not possible to overcome any resource constraints within the Official Solicitor s Office, there is potential to develop a specialist panel of statutory practitioners, who could act on behalf of testators. Such a scheme might resemble the role of Accredited Legal Representatives (ALRs)in health and welfare proceedings, licensed by the Law Society under its Mental Capacity (Welfare) Accreditation scheme. Appropriately experienced and skilled property & finance practitioners may, as ALRs, offer an alternative and cost-effective option for the testator. We acknowledge that the role undertaken by the Official Solicitor in statutory will proceedings is complex and highly skilled. Any alternative option for representation would need to replicate these high standards and skills set. We would be happy to work together with the necessary parties to explore this option further. Question 14 Do consultees think that a supported will-making scheme is practical or desirable? A supported will-making scheme is desirable and would better enable our compliance with the UN Convention on the Rights of Persons with Disabilities. It is however, difficult to comment on the practicalities of such a scheme without a firm set of agreed proposals. For example, a conflict of interests could arise if would-be supporters under such a scheme were to benefit under the testators will. Such issues do not only arise where a supporter is a family member, but could extend to charities and other organisations who provide such support but may benefit from gifts made under the will. It may be that such charities need to take a step back from their supportive role for those testators wishing to include them in their will, but this does not seem desirable. We recommend that the Commission consults with the wider profession should it decide to recommend a supporter scheme. If so, we ask for consultees views on: (1) who should be able to act as supporters in a scheme of supported will-making? (2) should any such category include non-professionals as well as professionals? (3) should supporters be required to meet certain criteria in order to act as a supporter and, if so, what those criteria should be? 12

13 (4) how should supporters be appointed? (5) what should be the overarching objective(s) of the supporter role? (6) how should guidance to supporters be provided? (7) what safeguards are necessary in a scheme of supported will-making? In particular: (a) should a supporter be prevented from benefitting under a will? (b) should a fiduciary relationship be created between a supporter and the person he or she is supporting? (paragraph 4.59) (1) For the reasons laid out in the consultation document, we agree that supporters should, at least initially, be professionals. We recommend accredited lawyers and will draftsmen, medical practitioners, qualified private and local authority care advocacy service providers and notaries. We recognise that limiting the supporter role in this way can limit accessibility for some, as there will be associated costs, however, given concerns around fraud, conflicts of interest and undue influence, we believe the supporter scheme should require scheme members to be independent from the testator and equipped with the skills necessary to actively support them through the process of making a valid will. (2) Although we recommend that the scheme should be open only to sufficiently independent professionals, we do recognise that in some cases, and to varying extents, family and friends already provide support to testators. In our view, it would be unrealistic and impractical to seek to regulate this support by requiring anyone wishing to help a testator to register under the scheme. However, for those non-professionals who are sufficiently independent, experienced in will-making and skilled in supporting vulnerable individuals, we see no justification why their services should not be made available under the scheme. (3) Yes. Regardless of background, supporters must demonstrate they have the necessary skills and experience to undertake this work. It may also be preferable for supporters to undertake a form of approved training. Training could help ensure that supporters are aware of the limits of their role and skills and the importance of tailoring the level of support offered to the needs of the testator. (4) Appointment to individual testators should be a mutual agreement between the supporter and the testator wherever possible. (5) We suggest that the overarching objective of the supporter role should mirror the wording of Article 12(3) of the UN Convention on the Rights of Persons with Disabilities - specifically, take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. (6) Guidance to supporters might most usefully be set out within any Code of Practice for testamentary capacity under the MCA Further guidance could also be provided in a Code of Conduct for the scheme. (7) It will be important to stress the need to seek independent legal advice before executing a will. 13

14 (a) This will depend on whether the supporter plays any other role in relation to the testator. For example, where a supporter is also a family member, or a volunteer within a charity, it would be unhelpful to restrict testamentary freedom in this way and it would be unfair to penalise a family member or charity for seeking to offer support to a testator who would otherwise be unable to make their own will. We therefore do not agree that supporters should be prevented from benefitting under a will as a general rule. If, however, a professional is acting as a supporter, we see no reason why they cannot be prevented from benefiting in a will they have been involved in drafting or offering advice on. (b) Yes. As proposed elsewhere in the consultation, we believe a presumption of undue influence should attach to wills in which a supporter is also a beneficiary under the will. Question 15 We invite consultees views on whether the current formality rules dissuade people from making wills. (paragraph 5.46) We do not believe that the formalities for making a valid will act as a deterrent for those who can, or choose to, engage solicitors to help draft their will. For those who are unable to, or who prefer not to engage with professionals, we anticipate that the formality rules do act as a barrier to leaving a will, though perhaps in these cases the rules play a more important safeguarding role. Question 16 We invite consultees views on what they see as being the main barriers to people making wills. (paragraph 5.46) We see the main barriers to leaving a will as: Cost - where a professional is involved Discretion - it is not compulsory to make a will and it is often not a priority unless there is a difficult medical diagnosis Formalities - requires planning ahead. You cannot simply note your wishes down Misunderstanding of the law - of the intestacy laws and the false concept of a common law spouse automatically becoming entitled to inherit assets. Question 17 We provisionally propose that a person who signs a will on behalf of the testator should not be able to be a beneficiary under the will. Do consultees agree? (paragraph 5.55) 14

15 We agree with the Commission s proposal to bring this in line with the position of witnesses who, under current rules, cannot benefit under the will. Question 18 We provisionally propose that a gift made in a will to the spouse or civil partner of a person who signs a will on behalf of the testator, should be void, but the will should otherwise remain valid. Do consultees agree? (paragraph 5.55) We also agree that gifts left to the spouse, or civil partner of the person signing at the testator s direction should be invalid. QUESTION 19 We provisionally propose that if the law is changed so that a gift to the cohabitee (or other family member) of a witness is void, then a gift to the cohabitee of a person who signs the will on behalf of the testator should be void. Do consultees agree? (paragraph 5.55) We agree that the law is changed so that gifts made to the cohabitee or other family member of a witness to a will is made void, the same should apply to cohabitees and other family members of those who sign the will on behalf of the testator. Question 20 We provisionally propose that a gift in a will to the cohabitant of a witness should be void. Do consultees agree? (paragraph 5.59) An increasing number of households are cohabitants and reforming the law in this way will bring this important safeguard into the 21st century. It will be important to ensure that the definition for cohabitants is appropriate and reflects other areas of law as much as is reasonable. Clear guidance should be provided to ensure consistent application and understanding of this change. 15

16 Question 21 We invite consultees views on whether gifts in a will to the parent or sibling of a witness, or to other family members of the witness should be void. If so, who should those other family members be? (paragraph 5.59) No. Whilst we understand that this may provide an additional layer of safeguarding against undue influence, in our view this proposal would be too restrictive. We consider that it would be far too easy for testators to fall foul of this rule, which would then have unwanted consequences of nullifying well intended gifts. Question 22 We invite consultees views on whether it should be possible, in defined circumstances, to save a gift to a witness that would otherwise be void. (paragraph 5.61) We do not believe this is necessary if the courts are to be given a dispensing power to recognise a testator s testamentary intentions. Question 23 We provisionally propose that the reference to attestation in section 9(d)(i) of Wills Act 1837 be removed. Do consultees agree? (paragraph 5.66) Yes: No: X Other: We believe the legislation is sufficiently clear that the testator is signing in the witnesses presence and therefore that the witness is actually witnessing the testator s signature or acknowledgement. Question 24 If consultees do not agree that the attestation requirement should be removed, we invite their views as to whether attestation should: (1) be defined to mean that the witness must sign the will and intend that his or her signature serve as clear evidence of the authenticity of the testator s signature; and (2) apply in all cases, including those where the witness acknowledges his or her signature in the testator s presence. (paragraph 5.66) We are not convinced that the Commission s proposed definition at (i) is accessible for witnesses where professionals are not involved in the will. In our view, the legislation is clear. We agree with the Commission s proposals at (ii). 16

17 Question 25 We provisionally propose that holograph wills are not recognised as a particular class of will in England and Wales. Do consultees agree? (paragraph 5.74) A single set of formality requirements for wills would be preferable. We note that if a dispensing power is introduced, this will provide a useful saving provision for a holograph will in any event. QUESTION 26 We provisionally propose that provision for privileged wills should be retained, but should be confined in its scope to: (1) those serving in the British armed forces; and (2) civilians who are subject to service discipline within schedule 15 of the Armed Forces Act Do consultees agree? (paragraph 5.80) However, we question whether privileged wills are necessary if a dispensing power could be used to give effect to the testamentary intention of those who benefit from privileged wills. QUESTION 27 We invite consultees to provide us with evidence of how common it is for a will to be invalid for non-compliance with formality requirements. (paragraph 5.90) We are not able to provide this evidence. The Commission may consider whether HMCTS would be best equipped to offer data in this area. QUESTION 28 We provisionally propose that a power to dispense with the formalities necessary for a valid will be introduced in England and Wales. We provisionally propose a power that would: (1) be exercised by the court; (2) apply to records demonstrating testamentary intention (including electronic documents, as well as sound and video recordings); 17

18 (3) operate according to the ordinary civil standard of proof; (4) apply to records pre-dating the enactment of the power; and (5) allow courts to determine conclusively the date and place at which a record was made. Do consultees agree? (paragraph 5.105) We agree with the proposals at (i)-(v). The Commission may also wish to consider whether the dispensing power should allow courts to have regard to unrecorded statements of testamentary intention made to two or more people. QUESTION 29 We provisionally propose that reform is not required: (1) of current systems for the voluntary registration or depositing of wills; or (2) to introduce a compulsory system of will registration. Do consultees agree? (paragraph 5.119) We agree that to require compulsory registration of wills would be disadvantageous as it would create a barrier to will making. However, testators should be encouraged to register with the Principal Registry of the Family Division. QUESTION 30 We provisionally propose that: (1) an enabling power should be introduced that will allow electronically executed wills or fully electronic wills to be recognised as valid, to be enacted through secondary legislation; (2) the enabling power should be neutral as to the form that electronically executed or fully electronic wills should take, allowing this to be decided at the time of the enactment of the secondary legislation; and (3) such an enabling power should be exercised when a form of electronically executed will or fully electronic will, as the case may be, is available which provides sufficient protection for testators against the risks of fraud and undue influence. Do consultees agree? (paragraph 6.43) 18

19 We agree that the proposals to allow electronic wills would help to give effect to a testator s intentions. However, for the reasons highlighted in the consultation, the necessary safeguards and appropriate infrastructure must be in place to ensure vulnerable testators are protected from abuse. Furthermore, given the uncertainties over electronic wills what form they might take, how they might be signed or validated, how they might be stored, how they might be revoked, as well as what is and what is not an acceptable electronic will, or even an electronic signature to validate a will, we strongly recommend that the power to introduce electronic wills should be reserved to primary legislation, which will ensure there is full debate and detailed scrutiny of proposals. QUESTION 31 We provisionally propose that electronic signatures should not be capable of fulfilling the ordinary formal requirement of signing a will that applies to both testators and witnesses (currently contained in section 9 of the Wills Act 1837). Do consultees agree? (paragraph 6.45) Given the current technology available, we agree with this proposal. However, it may be appropriate to revisit this if or when technology makes this possible without arousing suspicions of fraud. QUESTION 32 We ask consultees to provide us with their comments on, or evidence about: (1) the extent of the demand for electronic wills; and (2) the security and infrastructure requirements necessary for using electronic signatures in the will-making context. (paragraph 6.87) We are not able to provide evidence on demand or requirements for electronic wills. We suggest that these issues should be carefully considered and consulted on before electronic wills are introduced. QUESTION 33 If electronic wills are introduced, it is unlikely that the requirement that there be a single original will would apply to electronic wills. Consequently, it may be difficult or impossible for testators who make wills electronically to revoke their wills by destruction. 19

20 (1) Do consultees think that a testator s losing the ability to revoke a will by destruction is an acceptable consequence of introducing electronic wills? (2) Are consultees aware of other serious consequences that would stem from there not being a single original copy of a will made electronically? (paragraph 6.97) Yes: No: Other: (1) Yes. We believe a testator losing the ability to revoke a will by destruction is an acceptable consequence to introducing electronic wills. The ability to revoke a will by destruction is often misunderstood; calling its usefulness into question. For example, it is much easier to destroy a valid will than to make it, and accidental destruction should perhaps not invalidate a testator s testamentary intentions. (2) In our view, a clear rule for destruction would be preferable, which should be considered with and reflect the platform(s) for making electronic wills. QUESTION 34 We invite consultees' views as to whether an enabling power that provides for the introduction of fully electronic wills should include provision for video wills. (paragraph 6.106) Yes. If an enabling power is introduced, it should not see to judge in advance the platform that will achieve the considerations outlined by the Commission. However, for the reasons discussed in the consultation paper, we do not at present believe a video will capable of creating a valid will. That said, we anticipate it may be possible in the future for electronic wills to include elements of both written statements and video recordings. QUESTION 35 There is currently a rule relating to knowledge and approval that mirrors the rule in Parker v Felgate, which relates to capacity. The rule allows, by way of exception, that the proponent of a will may demonstrate that the testator knew and approved the contents of his or her will at the time when he or she instructed a professional to write the will, rather than the time at which the will was executed. We provisionally propose to retain the rule. Do consultees agree? (paragraph 7.76) For the reasons discussed in our response to question seven, we agree that the rule should be retained where a professional has taken the appropriate steps as summarised by Lord Justice Moore-Bick at paragraph 55 in Perrins v Holland. Adopting a functionalist approach where a professional has taken such steps and recorded those steps will assist the testator in securing his wishes. We believe the rule therefore supports testamentary freedom. 20

21 QUESTION 36 We provisionally propose that the general doctrine of undue influence should not be applied in the testamentary context. Do consultees agree? (paragraph 7.105) We agree with the Commission s analysis that the threshold of proving testamentary undue influence is high. We agree that adopting the general doctrine of undue influence could unintentionally restrict testamentary freedom by facilitating speculative claims by disappointed beneficiaries. However, we take exception to the Commission s comments at Whilst we do not wish to place a barrier in respect of making a will and testamentary freedom, professional advice should be considered material, particularly where the circumstances of the will are complex or where the value of the estate is warrants professional advice, whether legal or otherwise. QUESTION 37 We provisionally propose the creation of a statutory doctrine of testamentary undue influence. Do consultees agree? (paragraph 7.129) We endorse the objectives set out at QUESTION 38 We invite consultees views on: (1) whether a statutory doctrine of testamentary undue influence, if adopted, should take the form of the structured or discretionary approach. (2) if a statutory doctrine were adopted whether a presumption of a relationship of influence would be raised in respect of testamentary gifts made by the testator to his or her spiritual advisor. (paragraph 7.129) If a statutory doctrine of testamentary undue influence were created, we would prefer a discretionary approach which empowers a court to determine, on the specific facts, that there is a relationship of influence which calls for an explanation. We are concerned that the presumption of influence in respect of some relationships is too narrow. It is our understanding that the majority of cases of suspected undue influence or abuse arises from familial relationships or relationships with friends or neighbours. 21

22 The proposed list of relationships where an irrebuttable presumption of a relationship of undue influence exists is, in our view, too narrow and does not sufficiently protect a vulnerable testator. We note that a relationship of influence may be the reason a testator seeks to include a beneficiary in a will, and such influence may not be untoward. In those circumstances, we question whether the burden of proof on the intended beneficiary is supportive of testamentary freedom. The imposition of additional obligations on professional advisers to enquire of a relationship and advise of susceptibility to a challenge of the will, could be an imposition too far as this will increase the level of risk for professionals, and consequently, the barriers to making a valid will. QUESTION 39 We ask consultees to tell us whether they believe that any reform is required to the costs rules applicable to contentious probate proceedings as a result of our proposed reform to the law of undue influence, and knowledge and approval. (paragraph 7.136) The exceptional to the general rule (in relation to costs) arises in contested probate cases because litigation stems from the behaviour of the testator. Where undue influence is alleged, it is the behaviour of a third party that is the subject of litigation. Our understanding is that the court has discretion to consider costs based on the reasonableness of the claim and the conduct of parties during litigation. We anticipate that the courts will apply appropriate discretion in respect of costs and do not consider further changes are necessary. QUESTION 40 We provisionally propose that the requirement of knowledge and approval should be confined to determining that the testator: (1) knows that he or she is making an will; (2) knows the terms of the will; and (3) intends those terms to be incorporated and given effect in the will. Do consultees agree? (paragraph 7.149) Yes, subject to wider proposals for reform in this area being implemented. We do not consider that this would disregard a requirement to understand the nature and effect of the will. 22

23 QUESTION 41 We provisionally propose that the age of testamentary capacity be reduced from 18 to 16 years. Do consultees agree? (paragraph 8.28) The law should be reformed so that 16 and 17-year olds have the same right to make wills as adults, with a presumption of mental capacity. In respect of having the mental capacity to make wills, the test to be applied for 16 and 17-year olds should be the same as for adults. Further, the MCA 2005 should be amended to enable the Court of Protection to make a statutory will in respect of a 16 or 17- year-old. There should otherwise be no requirement for a 16 or 17-year-old to make an application to court for purposes of making a will. On a more general point, while welcoming the Commission s proposals in relation to testamentary capacity, we suggest that a comprehensive review of decisionmaking by under 18s is required. QUESTION 42 Should the courts in England and Wales have the power to authorise underage testators to make wills? Yes: No: Other: X In light of the answer to question 41 above, we take underage to mean under 16. If a child under 16 is found to have the requisite capacity to understand and make a will we suggest that the court should be given the power to authorise this. If the child is deemed unlikely to ever have sufficient capacity to make a will, then a procedure also needs to be put in place to allow them to make a will via the statutory will procedure or other suitable process. If so, who should be allowed to determine an underage testator s capacity at the time the will is executed? (paragraph 8.44) In our view, as an application for authorisation would be made to the court, the decision of assessing capacity falls on the court to consider as it will have the full facts of the case and will consider these issues alongside its duty to consider the welfare and best interests of the child under the Children Act We suggest that if implemented, legislation will need to set out what test is to be used to determine whether the child has capacity for these purposes (a term which would be preferable to Gillick competence). The 2015 Code of Practice to the Mental Health Act 1983 might provide a model for such a test (see paragraph 19.36) which is adapted from section 3 of the MCA Other matters which will need to be considered in this context are: 23

24 Whether such children would be empowered to bring an application themselves; Would they need a litigation friend; What level of court fee would be appropriate; Would there be an automatic respondent to the application; Who would be required to pay for a capacity assessment and report. QUESTION 43 We provisionally propose that statute should not prescribe the order in which interpretation and rectification should be addressed by a court. Do consultees agree? (paragraph 9.43) We agree. QUESTION 44 Do consultees know of any cases in which the order of interpretation and rectification has caused problems in practice? If so, please explain the facts of the case and the nature of the problem. (paragraph 9.43) We are not aware of any cases in which this has been an issue. QUESTION 45 We provisionally propose to replace sections 23 to 29 of the Wills Act 1837, modernising and clarifying the language of those sections while retaining their substantive effect. Do consultees agree? (9.47) We agree and support the adoption of clear and modern language. QUESTION 46 As regards sections 23 to 29 of the Wills Act 1837, we ask consultees whether in their view: (1) any of those provisions are obsolete; (2) any of those provisions require substantive alteration; and (3) if any provisions are obsolete or require substantive alteration, what changes are needed and why. (paragraph 9.47) 24

25 Section 23 Section 24 Section 25 Section 26 Section 27 Section 28 Section 29 (1) Not obsolete (2) modernising and clarifying the language (3) see above (1) Not obsolete (2) Language appears clear however amendments may be required if other sections are modernised or clarified. (3) see above (1) Not obsolete (2) modernising and clarifying the language (3) see above (1) Not obsolete (2) modernising and clarifying the language (3) see above and omission of copyhold land in heading (1) Not obsolete (2) modernising and clarifying the language (3) see above (1) Not obsolete (2) modernising and clarifying the language (3) see above (1) Not obsolete (2) modernising and clarifying the language (3) see above Whilst we agree that the language in these sections can be modified and updated, in our view these are important sections for the interpretation and clarity of wills. Even if wide discretions are introduced to allow enabling powers to be used to interpret wills, we favour keeping these provisions to provide a basis for interpretation of wills and to stop more matters coming before the courts. 25

26 QUESTION 47 We provisionally propose that section 30 of the Wills Act 1837 be repealed. Do consultees agree? If not, please provide evidence of the practical use of section 30 of the Wills Act (paragraph 9.47) Yes: No: Other: X We cannot provide any evidence on the use of section 30 of the Act. QUESTION 48 We provisionally propose that section 31 of the Wills Act 1837 be repealed. Do consultees agree? If not, please provide evidence of the practical use of section 31 of the Wills Act (paragraph 9.47) Yes: No: Other: X We cannot provide evidence on the use of section 31 of the Act. QUESTION 49 Do consultees think that there is a need for any new interpretative provisions in the law of wills? If so, please state: (1) what problem the new provisions would address; and (2) why that problem is inadequately addressed under the current law. Please also give an example of a case in which the problem has arisen where possible. (paragraph 9.55) We believe that the law is settled in respect of both examples referred to at 9.48 to However, we agree that new provisions would afford clarity in many cases of unintended consequences of a will prepared without proper consideration of current legislation and law. At question 53 below, reference is made to actions of a third party subverting a testator's intentions. However, there is scope for interpretive rules to cause further confusion. For example, after a corporate action, company shares issued to a testator double from 100 to 200; the testator reviews his will after that point and considers the gift should remain at 100 shares. QUESTION 50 Do consultees think that the scope of rectification in the law of wills should be expanded? If so, please state: (1) what problem the expanded doctrine of rectification would address; and 26