Modernisation of wills is essential, but by no means at the risk of client protection

The Law Commission’s report on updating the Wills Act was certainly a mixed bag for professionals who practise in this area of law across England and Wales. As we begin to digest the range of implications these proposals may have for the sector, there are several key points that have already met with both approval and concern among professionals advising elderly clients and their families.

Capacity test

One of the major proposals set out by the Law Commission is to update the existing test for testamentary capacity – Banks v Goodfellow – either by amending the current statutory footing, or replacing it completely with the Mental Capacity Act 2005 (MCA).

This presents somewhat of a dilemma for professionals who recognise the merits of both methods, but also the discordance between them. Any practitioner who regularly deals with clients who have lost capacity will have come across a situation whereby the individual is deemed to have capacity under one test and not the other, or vice versa. This creates issues of inconsistency and confusion, not only for legal professionals, but also for medical practitioners and doctors. Our concern is that further confusion in this area may lead some medical professionals to refrain from making a judgement on capacity at all – so whatever the outcome, clarity is key.

Although the MCA is clearly better designed to accommodate clients with dementia and fluctuating capacity, Banks v Goodfellow carries with it a wealth of statutory guidance and case law (albeit somewhat dated) that is simply not covered by the MCA.

The alternative option, to change the test to one statutory law under the MCA, alongside a practice direction referencing useful aspects of Banks v Goodfellow, seems the most sensible. However, finding a way of combining the two tests without causing conflict will not be an easy task for the Commission.

Although the proposal signals a positive step towards improving legislation around testamentary capacity disputes, we would welcome further consultation on this subject to ensure a comprehensive but clear method is established.

Cause for concern

Our members welcome many of the proposals put forward by the Commission – namely reducing the age limit for making a will to 16, further limits for witnesses, and updating the law on ademption – with the usual caveat that they are subjected to full consideration and consultation. However, some of the proposals immediately rang alarm bells. More dispensing powers for courts is beneficial for cases where there is sufficient evidence showing the testator had not expressed their true wishes, but the prospect of using emails and texts raises serious questions about the authenticity of such evidence. Very careful thought will be required to establish what evidence can be relied on, how we can determine the capacity of the testator at the time of these exchanges, and whether they were even made by the testator at all.

The issue of digital security will no doubt be the main point of contention of these proposals, and we are happy to see the Commission acknowledge the risks of fraud without the requirement of a proper signature for wills. We would never support a fully automated system and it is clear to us that the risks of such a method far outweigh the benefits. We place great emphasis on the ‘soft skills’ involved with advising older and vulnerable clients and so face-to-face contact and advice will always remain of paramount importance to us.

Other areas of the proposals include narrowing the definition of ‘undue influence’ to align with presumptions made on lifetime giving, and although the tightening of these rules will not make a huge difference to practitioners who already ensure best practice, it will make the issue less confusing for the public. The same can’t be said for the introduction of the term ‘will-maker’, which may cause confusion not only for professionals, but also for the general public. We are unconvinced the term testator needs updating at all, but if this is the case, alternative terminology should be found to ensure consumers are clear on the service they are receiving.

Solicitors for the Elderly will continue to seek the views of our membership before submitting a full response. At this stage, the proposal offers some encouraging changes, but there are also some serious causes for concern regarding the safety of clients that we will look to address first and foremost. Modernisation of wills is essential, but by no means at the risk of client protection.

Claire Davis is director of Solicitors for the Elderly, an independent, national organisation of over 1,500 lawyers providing specialist legal advice for older and vulnerable people, their families, and carers.

@SFELawyers www.sfe.legal