Felicity Hannah for independent.co.uk
Why making Wills too easy could leave elders open to abuse
Making it easier for people to bequeath their money and assets after their death sounds like it can only be a good thing. After all, more than one in two UK adults still haven’t formalised their wishes, research from Unbiased.co.uk shows, meaning more than 31 million now risk dying without a Will.
That’s an all-time high, which spells an all-time low for the country’s financial planning.
Partly because of the high number of people without Wills, the Law Commission has been consulting on softening the rules in order to ease the process, including paving the way for electronic Wills in order to better reflect the modern world rather than forcing people into a process that for many Will feel archaic and off-putting.
It could mean that changes expressed by voice message or even text could be taken into account by courts trying to decide what a deceased person’s genuine intention was.
Law Commissioner Nick Hopkins says the current system has not kept pace with society: “Making a Will and passing on your possessions after you’ve died should be straight-forward. But the law is unclear, outdated and could even be putting people off altogether.
“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it.”
Certainly the numbers available suggest there is real demand for options that use technology to make the process smoother.
Since Co-op Legal Services launched its online Will writing channel in October last year, for example, more than a third of its Wills business has moved online. What’s more, that online option is attracting a younger customer base, suggesting that the convenience is a big encouragement to get people to plan ahead.
However, the suggestions being consulted on are not without critics. One possible development is that courts could be given dispensing powers to accept a Will as valid even if the normal formalities have not been followed, for example if wishes were made known by voicemail or even text.
Plenty of legal experts are concerned that “easier” Wills may not sufficiently express the individual’s wishes, potentially meaning their intentions are not actually carried out.
Too serious to ease the rules
Nicola Waldman, private client partner at the law firm Hodge Jones & Allen, says: “The problem with simply making Wills ‘easier’ is that it risks undermining the fact that they remain extremely important documents with significant financial implications. As such, they require serious thought, with the testator (the person making the Will) clearly understanding what they are doing.”
James Antoniou, head of Wills for the Co-op, says the spirit of the proposals is welcome but he has some reservations. “Making the law more accessible is one of today’s biggest challenges facing the legal industry.
“However, at the moment, the laws about what makes a Will legally valid are strict and clear. So any relaxation of these rules, by giving the courts power to recognise other types of communication, creates uncertainty which could lead to a greater number of legal disputes and ultimately with families suffering the associated legal costs.
“It’s important to recognise that these proposals are not trying to wholly replace the way Wills are being written today, they are currently looking to extend the court’s powers to be able to recognise a person’s wishes where it is clear that they were intending to make a Will but it doesn’t technically comply with the current strict rules.”
Many legal experts share Antoniou’s concerns that the proposals Will muddy the waters and risk increasing the number of legal challenges to Wills.
Simon Thomas, partner at the law firm Hutchinson Thomas, believes that it is essential Wills are written with proper, informed legal advice and not just to reduce the opportunity for challenges.
“It is commonplace for disgruntled relatives to seek legal advice over the validity of Wills although the number of successful challenges are relatively few,” he says. “These proposals will increase the amount of litigation in this area and it is therefore advisable to have professional advice from a solicitor rather than having a homemade Will or one with an unregulated Will writer.
“When making Wills, solicitors can advise clients of ways of reducing the risk of such challenges as even if they eventually fail, the costs to the estate in defending them can be many thousands of pounds.”
The organisation Remember a Charity has expressed concerns that people’s sincerely intended bequests, for example to charities, may be overturned if relaxing the rules increased the scope for legacy disputes.
However, its director Rob Cope says that overhauling Will writing could encourage people to update their Wills more regularly, ensuring their last wishes were genuinely carried out.
“We need to be mindful that relaxing the laws around what makes a Will legally valid could create uncertainty and increase the scope for legacy disputes,” he says. “This means having more accessible, regulated Will-writing opportunities, while ensuring appropriate checks are in place to test mental capacity and protect against undue influence.
“With contested Wills on the rise, charities are keen to avoid the emotional, financial and reputational costs associated with inheritance disputes, defending donors’ wishes and their own legal obligation for funds allocated to them. We are keen to ensure that the new system provides greater protection for the public and minimises the scope for conflict between charities and any other potential recipients.”
The Law Commission is clear that change is needed to reflect technology and ensure people’s actual wishes can be carried out.
Hopkins says: “We want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”
There is certainly a danger that the current formal system both prevents people updating their Wills but also puts them off. The survey carried out by Unbiased.co.uk showed the top reasons for not having a Will included not getting around to it, not thinking about and deciding it was too expensive.
If the Law Commission updates the rules to make Will writing easier and more accessible then even with more legal challenges there’s scope for more people’s last wishes to be honoured.