09 Jan 2024
30 Nov 2023
The Law Commission is an independent statutory body that keeps the ever-increasing body of laws under review. One of the many things that they are looking at concerns the making of Wills.
In 1837, the Wills Act set out the requirements for a Will to be valid. Whilst this piece of law can hardly be described as ‘modern’ – indeed, it was an Act of Parliament discussed in the time of William IV, and passed just after Victoria became Queen – it has been the foundation of Will-making in England and Wales for almost 200 years.
It is not without fault, and there have been various changes to it over the years. However, the general principle has remained the same – Wills must be in writing, signed and witnessed.
There is now a suggestion that – along with many other things – the process of making a Will will become electronic. Instead of signing (or placing a mark on) the Will the maker will use some electronic tool to authorise it.
For many years there have been those who have argued that having a formal legal process – involving qualified professionals – to confirm the validity of a Will should be avoided as it would be a ‘barrier’ to making a Will. Instead, in England and Wales we rely on a completely informal process. Wills can be made and stored at home, with the bank or – as Aretha Franklin did – between sofa cushions!
In many European countries they use lawyers to authenticate Wills, which are then entered into a registration system. Perhaps it is the time to do that here.
The most important – and concerning – aspect is that electronic Wills could lead to uncertainty, to disputes and to the possibility that the systems are abused.
What if a person lacks capacity or is made to make a Will? What if someone makes the Will fraudulently?
Very often – and no thanks to the way the media and the Government seem to treat the subject – the making of a Will is seen as a ‘simple’ transaction – the client tells the solicitor what they want, and then the solicitor writes it up.
That is not how it should be. That is not how we do it at Rubin Lewis O’Brien.
We take time to discuss matters, to get a feel for what it is you want to achieve. We then discuss how best to do that.
I often give the example of getting into a car with an ‘A to Z’ map book. You don’t look at all the available routes from where you are. You look for the destination, and find the most direct route to it. That is what we do, in a legal sense.
I have a dislike of unnecessary complication. Sometimes, simplicity is best. But sometimes, some complexity is needed – for example, if there are disabled beneficiaries, if there are young children or (modern phrase alert:) ‘blended families’. You may want to protect a child’s benefits, or prevent financial abuse of a vulnerable person.
There are lots of options available, and some will be right, and some not. The importance is getting advice you can trust from a solicitor.
If you want to discuss making a Will, call my office on 01633 867000 and we will be pleased to talk you through your options.
Don’t leave it to chance!