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How do we bring wills into the 21st century?

Will writing

The Law Commission for England and Wales is consulting on measures to modernise legislation surrounding wills. What would you like to see them introduce to bring these Victorian laws up to date?

I was at a wedding reception over the summer and a fellow guest cheerily pointed out that if the bride or groom had already made a will, it could be invalid. Not the sort of conversation I was expecting, but I have to confess I didn’t know that was the case.

I’ve not actually made a will, although I know I should, and, as that wedding day chat highlighted, I’m not quite sure what all the rules mean anyway. Now I’m worried any will I do make will not pass on my possessions as I intend.

The Law Commission for England and Wales suggests that the UK’s 180-year-old will laws are unclear, outdated and fail to protect the vulnerable. They could even be putting people off making a will – which might be why 40% of people die without having written one.

Have you written a will?

Yes (71%, 168 Votes)

No (29%, 68 Votes)

Total Voters: 236

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It is now aiming to improve the way that these laws work. There have been numerous unhappy cases when someone’s wishes haven’t been followed, even though it was obvious what they wanted, simply because a series of strict rules have been followed to the letter.

The Commission is currently consulting on measures to bring these laws into the 21st century. These include proposals to soften the strict formality rules, introduce a new mental capacity test that reflects modern medical understanding of conditions such as dementia, and lower the age for making a will from 18 to 16.

It also suggests that in some cases, a person’s wishes expressed in a text and email should be recognised as a valid will, paving the way for electronic wills fit for a modern world.

Of course, making a will should be straightforward, and when it’s clear what someone’s intentions are, those wishes should be acted on. But the Law Commission is concerned that the Victorian laws can act as barriers to people making a will, and can lead to painful disputes over wills following the death of a loved one.

We’ll be submitting a response to the consultation, and would like to hear your experiences with wills.

Have you been involved in a dispute over the execution of a will? Have you put off making a will because you’ve thought it would be too complicated, or fear that your last wishes won’t be followed?

Comments
Guest
Sally Gray says:
23 August 2017

Why or for what reasons are they looking at changing the age from 18-16 in order to make a will?

Guest
Victoria Marriott says:
23 August 2017

Hi Sally,
The theory is that 16yr olds can get married, join the army, live alone and make many of their own other decisions; so they should be able to make a decision about who they leave their estate too as well.
Currently in England & Wales the testamentary age is 18yrs and in Scotland is it currently 12yrs old.

Guest

If you can marry, join the army, leave school, consent to sexual activity, live alone and make their own medical decisions at 16 then why not be allowed to choose who gets to enjoy your worldly possessions after you’re gone? In Scotland the ‘testamentary age’ is 12!

Guest
Sally Gray says:
23 August 2017

Oh my god! that’s such a difference in age. I think its a good idea to change the age to 16, the above points are so valid, maybe 12 is a little young in my opinion.

Guest

I agree with Richard its time our 180 year old ancient laws were updated in line with the advancement in scientific research and the development of the adolescent brain.

It’s generally accepted the pre frontal cortex does not fully develop until the mid twenties. The pre frontal cortex is the part of the brain responsible for decision making, weighing up outcomes, forming judgments and controlling impulses and emotions. This section of the brain also helps people understand one another.

However, one area of a teenagers brain that is fairly well developed is the nucleus accumbens, one area that seeks pleasure and reward. A combination of underdeveloped pre frontal cortex in conjunction with a strong desire for pleasure and reward may explain a lot of stereotypical teenage behaviour.

The idea that 16 year olds are capable of making such rational long term decisions such as choosing to engage in sexual intimacy, getting married, joining the army, making a will, is unrealistic. No wonder nearly half of all marriages end in divorce and couples who can’t afford to separate are forced to live out the rest of their lives in passive frustration and unfulfillment.

Science has provided the evidence, surely its high time our outdated laws were changed to coincide with this.

Guest

I agree. But science is really simply a distillation of averages. For instance, it also ‘proves’ that teetotallers die before those who drink alcohol – and drink fairly substantially. The real issue is that we know fairly little about the human body and it’s dangerous to suggest selective studies can provide conclusive ‘proof’ about anything, really.

Guest
Sean Deery says:
24 August 2017

Great job

Guest

I don’t quite understand the connection between the amount people drink and being old enough and mentally and emotional enough to make a will. Please elucidate, preferably staying on topic which is ‘How do we bring wills into the 21st century.’

Guest

Indeed: you said “Science has provided the evidence, surely its high time our outdated laws were changed to coincide with this. and I merely pointed out a couple of facts: that ‘Science’ research is a snapshot process, in effect, whereby peer reviews and the work of other researchers in the field can often produce wildly differing findings subsequent to the original research being published. I then offered an example of this, whereby ‘Science’ has proved that alcohol intake beneath a certain level has been demonstrated to extend life expectancy. In that instance, interestingly, various special interest groups continue to produce their own ‘research findings’ which dispute what the now comprehensive meta-analyses have shown.

In short, a scientist of any calibre will never state anything with absolute confidence.

Guest

Science is not just statistics but about examining information and constructing a hypothesis to explain a phenomenon. As the science develops new information might show the hypothesis to be incorrect or incomplete and new ones put forward – all to be questioned and refined or replaced. One aim being to use a hypothesis to predict so advancements can be attempted. Nothing is ever proven, but the technique has provided enormous beneficial to us.

Guest

Alcohol in moderation can increase life expectancy, but alcohol abuse can reduce it for many reasons. The link might be at what age you decide to make your will before it is too late.

Guest

As long as you are sober when you make it 🙂 you are so right Malcolm moderation is key. The problem with making a will at such a young age, apart from those in my above posting is, your circumstances can change a number of times if you live long enough which necessitates frequent updating at great expense.

Guest
Hayley says:
24 August 2017

Hi Beryl, if your circumstances change, it is important that you amend your Will via codicil or writing a new one. Circumstances are highly likely to change throughout someones life, regardless at the age they make their Will. If someone has assets at a young age they would like to give away, or children from a young age they would like to appoint guardians for then surely it is fair they are able to protect this by writing a Will.

Guest

What age you you think is correct to make a will?
For some individuals the concept of making a will could be daunting, however in reality it is such a wise choice, even if one does not have an estate as such, but they may have children at a young age. These young parents should have the same rights to appoint guardians for their children as anyone else.
There was also a case recently in which a young girl was dying of a terminal illness and she wanted to be cryogenically frozen, in the hope to be revived one day. This case was dragged through the courts as she was unable to make this decision herself. However a theory is that if she was able to make a will, she could have appointed executors who could have made this decision, without the need to go through the courts.

Guest
Hayley Cummines says:
24 August 2017

Why put an age limit on when you can make a Will? If someone has the capacity to write their Will then it will stand in court. If circumstances change as the person gets older they can amend their Will via codicil or writing a new one. It should be an individuals right to decide who they want to inherit their estate, no matter how little or large it may be.

Guest
Lauren Button says:
24 August 2017

I totally agree, and believe that the age of writing a Will should be lowered from 18 to 16 within England and Wales.

Some 16 year old’s have children, assets and also have an idea on how they would like their body to be dealt with once they pass away (e.g. buried/cremated).

I believe it is essential that the laws are to be updated to fit and suit to today’s society. As mentioned above, if a 16 year old has a child, then they should be able to write a Will and appoint guardians to care for their children, in the event they predeceases them.

Guest

Victoria makes a valid point, but now armed with continuing scientific knowledge that your brain is not sufficiently developed enough to make important life changing decisions until your mid twenties surely is grounds for changes in our legal system. I recall a late elderly friend once saying “The elderly know well what it is like to be young but the young have yet to experience what it is like to be old.” It is often said in retrospect, if you could live your life over again would you have done things differently? It surely must help if your brain has matured enough to help you make those important decisions we all have to face in this life.

I owe my very existence to scientific research as do thousands of others. The court who allowed the unfortunate terminally ill young lady to be cryogenically frozen was faced with a dilemma. Scientific neurological research may soon provide substantive evidence to determine whether the court made the right decision as to her brain being sufficiently mature enough to make such a decision or whether that decision was influenced by that which presently still remains science fiction.

The US are well known for making unrealistic and unethical medical claims, often money orientated, when the onus is then placed on our legal system to decide whether they are genuine or spurious, giving false hope to desperate and seriously ill people.

If 16 year olds are bringing babies into this world either by accident or design, they need a parent or guardian to help them to cope until they are mature enough to take responsibility for themselves and their offsprings, many of whom are relying on state benefits to survive, but that is another subject entirely and I am veering off topic so will end it here.

Guest

I wonder how many 16 year olds have sufficient assets to make writing a will worthwhile?

Guest
Lauren Button says:
24 August 2017

I appreciate the points you are making Beryl and Malcolm, very valid.

In my opinion, it is not so much about whether a 16 year olds brain is ‘mature’ enough, it is simply about having the right to make a Will.

Granted, 16 year olds may not have sufficient assets such as property or significant amounts of money in policies such as pensions ect. However, in this day and age, with technology getting more advanced, 16 year olds most probably have hundreds if not thousands of pounds worth of assets such as a smartphone, tablet, laptop, computer, camera’s etc, all of which could be included in a Will.

Inline with modern society, 16 year olds are having children, intended or not, and they should be able to have a say on who should care for their child in the event of them passing.

Guest

I was just asking a question! 🙂 Many children will have assets below the age of 16, and some have children. So just where do we draw the line?. One argument could be to draw it at the minimum age at which the “child” can leave school; so when technically they can stand on their own feet in the real world. This is currently 16. So I think I would suggest that argument to support the proposed age.

Guest
Patrick Taylor says:
24 August 2017

The argument about lowered age appears to be ignoring the line of undue influence which has proved a happy hunting ground for lawyers for centuries. Wikipedia has both English and Australian examples with an interesting aside into German law.

I cannot get excited about the subject as I think it is very minimally important apart from exceedingly wealthy children where the fees for the drafting of a will can be recouped. Which? does offer a Wills Service and I do wonder if they have ever extracted details of when people make them which may provide a clue to youngest person; and eldest.

Guest

The sad facts remain:

* The UK has the highest teenage birth and abortion rates in Western Europe.

* Rates of teenage births are 5 times those of the Netherlands, double those in France and more than twice those in Germany.

* Groups who are more vulnerable to becoming teenage parents include young people who are: in or leaving care, homeless, underachieving at school, children of teenage parents, members of some ethnic groups, involved in crime, addicted to drugs or alcohol, living in areas with higher school deprivation.

The whole point being, should you have the right to make a will if you are not fully mature enough to accept the responsibilty of taking contraceptive precautions and/or bringing a child into being without having the emotional and mental maturity, the available resources and dedication necessary for its wellbeing?

[Sorry Beryl, your comment has been edited to align with our Commenting Rules. Please keep your comments and avoid comments which could be considered offensive to others. Thanks, mods]

Guest

Apologies mods! My social conscience was telling me that wee bairns were more important than ‘things’ on this occasion.

Guest

…but the UK had lower rates than Bulgaria, Romania, Slovakia, Hungary and Latvia.

Guest

A link to the consultation would have been useful. I have now found it and submitted my views directly where it counts.
For the purposes of this discussion here is what I sent.
Wills should be simplified and made less mysterious with words average people do understand, I.e.plain English. Your consultation itself is overly complicated and not easy to read by joe public.It tries to cover every eventuality, which is not possible and forces us down a complicated path. This won’t aid an increased used of wills to overcome the 40% figure.

It should be quicker and easier to make a will. Hence electronic means to do it all should be used wherever possible, and this treated as a priority. It will allow more use of wills and force a simpler process that is more understood. One example, if a testator registers as such online in a proven manner and then submits their will why do we even need a witness or signatures.

If we keep the current arcane process then no beneficiary should be able to sign a will as testator, or a witness. Furthermore, we agree with your proposal that witnesses should be fully independent and in no way do they or anyone connected to them in family, blood or business be a beneficiary.

There should not be any privileged wills. The military should support members to make a will as it’s so dangerous.

Guest

As a matter of interest, do under-eighteens actually own anything in a legal sense? If they have bought something, do they have consumer rights? I am not against lowering the age of legal responsibility and the capacity to make a will to sixteen or even lower, but I am not sure it should be necessary to make one in the formal legalistic way currently required. People’s instructions at death should count for something and be a valid substitute for a will – this could be done on a simple pro forma. Indeed, will forms are available on line and in hard copy form at high street stationers and something similar could be drawn up for use by people who are inhibited from making a will; it would have to be accepted as a legal presumption that the deceased’s instructions would prevail unless it was evident that they were wholly impractical.

Certainly, from what has been said, it sounds unlikely that anyone under 25 can legitimately declare that they are of sound mind and judgment! As to responsibility for the off-spring of a minor, I assumed they would come under the jurisdiction of the Court of Protection or be made a ward of court. I am not sure it is wise to allow a decision on the care for and upbringing of an infant to be left in the hands of a young teenager – they might appoint a totally unsuitable and incapable person. I think the infant’s interests should be paramount. I would expect the other parent to be responsible in the first instance but if they were also dead or out of contact the grandparents could apply for guardianship.

Guest

“You cannot legally sign a Contract until you are 18 (Contract Law) however a guardian or someone over 18 can legally sign for you after you are 16, and you can claim the property as your own, although you don’t technically own it until 18.”

Guest

A sixteen year old might want to pass on their mountain bike and smartphone to their best friend. Maybe there is a simple solution to help young people who don’t own considerable assets. It might at least help prepare them for making a will when they are a little older and have responsibilities.

Guest

When a young person dies or is killed there is an enormous amount of compassion – or at least there should be – which should ensure that the youngster’s possessions are passed to whomever he or she wishes. But the world is not always a kind and rational place and the person who gave the boy or girl the mountain bike or smart phone might want them back or wish them to go to a different person. I think there needs to be a presumption, enshrined in law, that a young person’s wishes or instructions, as made known in a dated note, letter or e-mail, and possibly by word of mouth if done in the hearing of two people who both confirm it, should prevail over any other decision. The correlation of wills and death is unlikely to increase the propensity to make a will among teenagers but a simpler, softer form of transfer, knowing it to be binding and subject only to the intervention of the court in the event of a dispute, might appeal and be effective up to adulthood. After that a will should be the proper vehicle but improved by the use of comprehensible language and no necessity to involve a solicitor unless the estate is is taxable, there are the interests of minors to protect, land or property are involved. or there are other legal complications. In a very large number of cases no will is necessary at all and the intestacy rules are quite adequate for administering the estate – so long as people understand what they imply.

I was interested to read previously here of surprise that the act of marrriage immediately invalidates an existing will. I thought this was a well-known and perfectly understandable concept given that the spouse or civil partner immediately becomes the foremost next of kin. When plighting their troths the marrying couple used to say ” . . . and with all my worldly goods I thee endow” but this is no longer part of the legal wedding vows unless specifically decided by both parties so the concept of equal ownership has fallen by the wayside.

We know the day we are born and all the other significant milestones in our lives but will never know when we shall die even though we pass the day every year. Being fully prepared is the only remedy if we wish to secure our legacies but this message is never delivered to the rising generations.