Making Wills Half a World Over: Part One of the Wills Series

1 August 2017

By Allison Curley

This series examines and compares recommendations made in several BCLI reports and those made by the Law Commission of England and Wales. To read the other posts in the series click here.

On July 13 2017, the Law Commission of England and Wales published its new Consultation Paper as part of its Wills Project. The publication, entitled “Making a Will,” sets out options for reform of the law of wills, and asks for public feedback on them. While the geographical scope of the Paper is restricted to England and Wales, reforms that have been implemented or recommended elsewhere in the common law world are noted are discussed.

In the last decade, BCLI has published, Wills, Estates and Succession: A Modern Legal Framework, Recommended Practices for Wills Practitioners Relating to Potential Undue Influence: A Guide, and the Report on Common-law Tests of Capacity. These reports led to the enactment of omnibus succession law reform legislation in British Columbia and inspired a new set of rules of court pertaining to probate. The Law Commission’s Paper cites earlier BCLI reports in relation to capacity, digital wills, undue influence, and will formalities.

This blog post is the first of a series comparing the Law Commission’s proposals for reform with BCLI’s previous work relating to the law of wills. Each blog post will compare the Law Commission’s proposals for reform of the law of wills in England and Wales with the BCLI’s recommendations in the same areas.

The Law Commission states in the introduction to the Consultation Paper that the law pertaining to wills in England and Wales is largely a product of the 19th century, and that it requires modernization. The main statute that governs the law of wills in England and Wales is the Wills Act 1837. The Law Commission suggests that the following changes in society warrant a review of the legislation that governs wills:

  • The aging population;
  • The greater incidence of dementia;
  • The evolution of the medical understanding or disorders, diseases and conditions that could affect a person’s capacity to make a will;
  • The emergence of and increasing reliance upon digital technology;
  • Changing patterns of family life, for example, more cohabiting couples and more people having second families; and
  • That more people now have sufficient property to make it important to control to whom it passes after their death.

The Law Commission notes that stakeholders have already identified that the law needs to be clearer so that it becomes more workable. With the information provided by consultees, the Commission will then develop recommendations for legislative amendments in a final report. An impact assessment will accompany the report, and will identify both the economic and non-economic impacts that the recommendations for reform could have. Further, the report may also be accompanied by a bill to change the law. This bill would include the recommendations made by the Law Commission.

The Paper is divided by chapters, each of which is dedicated to a certain aspect of wills law. There are 65 questions for consultees that are interspersed throughout the chapters, as well as at the end of the Paper. Some of the main subjects discussed in the Paper include capacity to make a will, formalities, digital wills, undue influence, interpretation and rectification, ademption, mutual wills, and revocation.

Stay tuned for next week’s post on the issue of will-making capacity!

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