Death is an inevitable part of life, which most do not like to contemplate, and marriage is still undertaken by many, although fewer people are choosing to tie the knot. Both events can create conflict, especially when it comes to money.

In a bid to tackle the growing number of predatory marriages (where a person marries someone, often who is elderly or who lacks mental capacity, as a form of financial abuse), the Law Commission has proposed reforms to protect these individuals from potential financial abuse.

40% of people die without making a Will each year, but since the legal framework for making a Will has been unchanged since Victorian times, the Law Commission has questioned whether the formality of physically signing and storing a Will is one of the barriers preventing many from putting one in place.

Many legal practitioners are of the view that current practices and procedures are outdated and have failed to adapt with the modern world, particularly when it comes to electronic Wills.

Currently, a physical Will must be signed by the testator in the presence of two witnesses, who must also sign the Will. The physical copy must be stored securely and the Probate Registry may request sight of it upon the testator’s death.

However, in response to the COVID-19 pandemic, legislation was introduced allowing individuals to have their Wills witnessed virtually. This runs until 31 January 2024. Currently, no announcement has been made about a further extension whilst the Law Commission considers potential permanent reforms to the law around Wills.

Having recently closed its consultation, the Law Commission has identified two areas which are ripe for reform, namely:-

• the use of electronic Wills
• how marriage or civil partnership can revoke a person’s Will.

The Law Commission originally consulted on the question of electronic Wills in 2017, since when we have seen a technological revolution. Teams and Zoom are now everyday tools – they have made the world we live and work in far quicker and more flexible. Should the same use of technology be extended to making a Will?

Fully electronic Wills could be created digitally, using electronic signatures, and stored electronically with no paper version needed. For practicing private client lawyers, the use of electronic signatures would provide a welcome step in completing a person’s Will.

Thought needs to be given to those making a Will without the use of a legal professional and how those who may be potentially vulnerable to undue influence, undue pressure or fraud can be protected. There also needs to be a mechanism to authenticate a person’s signature, so that it’s clear that the person making the Will understood and approved the contents of the document, and then applied their own signature themselves.

There is also a security concern that an electronic system may compromise the privacy of Wills with potential for data leaks.

How marriage and Civil partnerships affect a Will

The discussion around revocation of Wills by marriage has been prompted by rising concern about the exploitation of vulnerable people by predatory marriage. This type of abuse is relevant to Wills because currently, marriage or civil partnership automatically revokes a person’s Will, meaning that a surviving spouse or civil partner may inherit the entire estate in the absence of a new Will.

The consultation seeks to determine how often this form of financial abuse takes place and to consider if Wills should continue to be automatically revoked by marriage or civil partnership.

Current suggestions include updating the test for mental capacity when making a Will and providing a code of practice to guide the courts and professionals as to how a person’s capacity should properly be assessed.

Many couples can overcome this issue by making a new Will in contemplation of marriage, or shortly after their marriage. However, this is not always an option for the more vulnerable members of our society, such as those who are elderly or lack mental capacity.

We’ll be keeping an eye on developments and provide further updates and advice in this important area.

Private client solicitor, Charlene Merry, is part of Andrew Jackson’s dedicated private client team and is a member of Solicitors for the Elderly.

If you would like further help and advice on this, or for any other personal legal matters, please don’t hesitate to contact our team by calling (01482) 325242 or emailing charlene.merry@andrewjackson.co.uk