The legislation governing the creation of wills is 180 years old this year, and, surprisingly, much of it does remain useful and applicable. However, there have been significant changes over the course of the last two centuries, meaning that some aspects are outdated.

Unsurprisingly, technological advancements have impacted on how documents are generated, communicated and stored; something that the legislators back in 1837 could not have imagined or accounted for. More importantly, society has developed a better understanding of mental health and mental capacity. Despite this, the case law that determines whether a person has the necessary capacity to make a will is Banks v Goodfellow of 1870.

Today, the Law Commission has launched a consultation, "Making a Will", which you can find here, and will be open until 10 November.

The areas that this consultation aims to address include:

  • Around 40% of adults in England and Wales have not made a will. The Commission would like to hear from both professionals and members of the public to understand why people fail to make a will;
  • Understanding the difficulties experienced by families when, after someone passes away, a dispute arises over the validity of their will;
  • A proposal to reduce the minimum legal age to create a will from 18 to 16; and
  • A potential change to the law on “ademption”.

As solicitors, the proposed change to the law on ademption is particularly welcome. If a testator makes a gift of property that they no longer own at the time of their death in their will, the gift fails and the beneficiary is disappointed. This failure of a testamentary gift is known as ademption.

Unwittingly, many attorneys create this problem. In the instance that a person’s house is left to a specific beneficiary in their will, but their attorney sells their house to pay for their care home fees, the gift can no longer take effect on death.

Under the current law, if the attorney wishes to avoid the gift being adeemed, they must make a specific application to the Court of Protection for authority to sell. The proposed change in the consultation is to create an exception in the law if the assets have been disposed of due to events beyond the control of the testator.

Further information

If you have any questions in relation to this consultation, you wish to make a will or lasting power of attorney, or need advice as an attorney, please contact Sheree Green or our Personal Planning Team on 0121 214 3728. To find out more about the other services we offer at Anthony Collins Solicitors, please visit our website.

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