In a previous blog we reported that the Law Commission’s Consultation was in progress. It has now concluded and some preliminary results have been published in relation to testamentary capacity, dispensing powers and electronic wills.

1. The Commission proposed that the test of the level of understanding needed to make a Will, currently set out in the 1870 case of Banks v Goodfellow, should be brought within the Mental Capacity Act 2005 test. This would enable a more modern test, which is more easily understandable by non-legal professionals such as doctors, to be used. They are also considering a code of practice for assessing capacity. Together, they hope that this would provide greater certainty that a person’s capacity has been properly assessed.
2. Dispensing powers are the power of a court to recognise an informal document as a Will, such as recently happened when an Australian Court recognised an unsent text message as a Will. Concern has been raised that relaxing the law in this way would lead to much more litigation and also a lowering in standards of Wills. The commission is seeking more evidence of the consequences in countries where there are greater dispensing powers.
3. The Commission considered the advantages and limitations of making and storing electronic (ie paperless) Wills. Whilst some responses are that they can see limited advantages of paperless Wills and are concerned about the potential for increased risk of fraud, others consider that this would encourage more people to make Wills.

The Commission are analyzing the responses over the coming months and will then make recommendations for the reform of the law of wills. They hope to publish their final report in mid-2019, accompanied – in draft form – by a new Wills Act to replace that of 1837.

Our advice is always that you should not delay in putting a Will in place as you never know what the future may hold and you may not have the opportunity or ability to make a valid Will in the future.  Whilst any changes resulting from the consultation might make it easier to make a Will, they could take several years to take effect and therefore if you are thinking of making a Will, we would suggest that you do not await the conclusion of these reforms before doing so.


We are on hand to help with any queries you may have in regards to Wills and Probate issues. Our wills and probate solicitors are based in Wakefield, Dewsbury, and Horsforth. Feel free to call us on 0330 300 1103 or request a call back by clicking here.

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