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New Law Commission looks to update will writing and consider mental capacity

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Simon Franklin, of the Wills, Trust and Probate department at Martin Tolhurst Solicitors has welcomed the announcement that there is to be a Law Commission to look at updating Will writing laws.

Simon said, “Making arrangements for when we pass away is something we all have to do and it is vital that the process of making a will is kept up to date and is as easy as possible.  This is a welcome opportunity to have the law modernised to make it “fit for purpose”.  The new rules must include an ability to make a Will online or electronically and that currently is not the case”.

The Law Commission that has been announced will look at the possibility of online or electronic Will writing in the future as well as reducing the age at which someone can make a Will from 18 to 16.  In addition the Commission will be looking at mental capacity on which there have been a number of high profile Court cases.  Simon commented, “We would like to see a presumption in law of the capacity of someone to write a Will.  Often the current law means in effect that the Executors for the deceased have to prove, where there is a challenge, that the deceased was mentally capable at the time of making the Will.  The presumption should really be the other way round.  Everyone making the Will should have to undertake a standard basic test under the Mental Capacity Act to show that they are capable of writing a Will.  This will prevent many arguments after death about whether the deceased was capable of making the Will or not at the time.”

Simon is also hoping that the Law Commission will ask the Court to give greater flexibility when upholding Wills that do not meet current strict legal requirements.  “Often we can be faced with a homemade Will that has one or two minor administrative errors upon it.  At the moment, because of the strict interpretation of Will requirements a Will can be deemed to be invalid when the reality is that the deceased’s intentions are very clear and should not be invalid because of an administrative mistake”.

“I hope that the Law Commission can take submissions from members of the public, and solicitors to quickly reform the area of Wills so that we can all move forward with a more practical, pragmatic system that encourages more people to make Wills, and it is easier for them to do so”, Simon ended.

If you would like to discuss creating or updating a Will to ensure your wishes are upheld, speak to our New Enquiries team on 01474 546013 to book your appointment with one of our Wills, Trusts and Probate experts.