Will writing in the 21st Century

12th September 2017

Will writing in the 21st Century

When thinking of making a Will, the idea of a Victorian lawyer taking down the last instructions at the bedside still springs to mind for many people, but a major change to how people can say what should happen after their death is likely to happen soon. If the proposals from the Law Commission get the go ahead, the law is likely to catch up with technology, and in future we could see emails and other simple expressions of intention being acceptable.
However, in the meantime, the only way to be sure of what happens after you die is to make your Will following the formalities that have been in place for hundreds of years. That is particularly important for those who may be living with partners ??" for whom the current law offers no protection ??" or where there are young children, for whom the choice of guardians may be important. Yet it is estimated that around 40% of the adult population do not have a Will.
To be valid, a Will must be in writing and be signed by the person making the Will in the presence of two or more witnesses, who must also sign at the same time.
Without a valid Will, the division of assets is decided by the Intestacy Rules under which, typically, the whole of the state of someone who dies leaving no surviving spouse or civil partner will go to children, or if they have none, to parents or other family members. If there is a surviving cohabitee they could apply for "reasonable financial provision" under the Inheritance (Provision for Family and Dependants) Act 1975, but this is a very slow and potentially expensive option, and in the meantime, they may be barred from living in the couple's home if it was not held in shared ownership.
The main proposal from the Law Commission would see the Courts able to recognise Wills that have not followed the existing strict rules, so long as the deceased's testamentary intentions are clear. That will include provisions to recognise electronic Wills, if fraud and undue influence can be ruled out. It is also intended that new rules would take better account of conditions such as dementia, which affect decision-making.
If these proposals go ahead, it will bring the law relating to Will writing into the modern world. However, these rules will take time to come into effect and there is likely to be a period of uncertainty during which any ambiguities in the new rules are tested in the courts. So for the time being it is important that Wills comply with the long-standing rules.
Not having a valid Will in place can create a lot of stress for surviving family, at what is already a very difficult time.

Web site content note: This is not legal advice; it is intended to provide information of general interest about current legal issues.
If you would like to enquire about making a Will, contact our Private Client department on mail@mercerslaw.co.uk or 01491572138.

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