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Making a will Consultation Paper 231 (Consultation Paper 231) Making a will © Crown Copyright 2017 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3 or write to the Information Policy Team, The National Archives, Kew, London TW9 4DU or email [email protected]. This publication is available at www.lawcom.gov.uk. THE LAW COMMISSION – HOW WE CONSULT About the Law Commission: The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Bean, Chairman, Professor Nicholas Hopkins, Stephen Lewis, Professor David Ormerod QC and Nicholas Paines QC. The Chief Executive is Phillip Golding. Topic of this consultation: The law of wills. This consultation paper sets out options for reforming the law of wills and seeks consultees’ views on those options. The paper also asks consultees a number of open questions related to the law of wills. Geographical scope: This consultation paper applies to the law of England and Wales. Availability of materials: The consultation paper is available on our website at http://www.lawcom.gov.uk/project/wills/. Duration of the consultation: We invite responses from 13 July 2017 to 10 November 2017. Comments may be sent: By email to [email protected] OR By post to Damien Bruneau, Law Commission, 1st Floor, Tower, 52 Queen Anne’s Gate, London, SW1H 9AG. Tel: 020 3334 3100 / Fax: 020 3334 0201 If you send your comments by post, it would be helpful if, whenever possible, you could also send them electronically. After the consultation: In the light of the responses we receive, we will decide on our final recommendations and present them to Government. Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at: https://www.gov.uk/government/publications/consultation-principles-guidance. Information provided to the Law Commission We may publish or disclose information you provide us in response to this consultation, including personal information. For example, we may publish an extract of your response in Law Commission publications, or publish the response in its entirety. We may also be required to disclose the information, such as in accordance with the Freedom of Information Act 2000. If you want information that you provide to be treated as confidential please contact us first, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic disclaimer generated by your IT system will not be regarded as binding on the Law Commission. The Law Commission will process your personal data in accordance with the Data Protection Act 1998. i ii Contents PAGE GLOSSARY AND ABBREVIATIONS 1 CHAPTER 1: INTRODUCTION 5 The Law Commission’s review of the law of wills 5 History of the project 6 What is a will? 7 Testamentary freedom and the intestacy rules 8 Context 9 Probate and estate administration 9 Other ways in which property may pass from the deceased to others on death 10 Challenges to a will after the testator’s death 10 International law and the law of other jurisdictions 10 Reform 11 Scope 11 Objectives of reform 13 Beyond law reform 13 Impact 14 Structure of this consultation paper 15 Acknowledgements and thanks 17 The team working on the project 17 CHAPTER 2: CAPACITY 18 Introduction 18 The effect of incapacity 20 Causes of incapacity 21 The current test of testamentary capacity 22 Limb (1): nature and effect 23 Limb (2): extent of the estate 24 Limb (3): claims 24 Limb (4): disorder of the mind or delusions 24 Burden of proof 25 Problems with the Banks v Goodfellow test 26 Three or four limbs? 26 Does not reflect modern understandings of capacity 28 iii The relationship between Banks v Goodfellow and the Mental Capacity Act 2005 28 Reform 32 Adoption of the Mental Capacity Act 2005 test 34 Placing Banks v Goodfellow on a statutory footing 35 A statutory presumption of capacity 37 The rule in Parker v Felgate 38 Assessment of testamentary capacity: the golden rule 40 In what circumstances should a testator’s capacity be assessed? 42 Who should assess capacity? 43 Guidance on how capacity should be assessed 44 Supplementary approaches 45 A certificate of capacity 45 An accreditation scheme 47 CHAPTER 3: STATUTORY WILLS 49 The current law 49 The exercise of the court’s discretion 50 Procedure 51 The UN Disability Convention 53 Problems in law and practice 54 Critique of the rationale for statutory wills and the operation of best interests 54 Procedural concerns 56 Reform 57 CHAPTER 4: SUPPORTED WILL-MAKING 60 Introduction 60 Supported will-making and international law 60 The UN Disability Convention 61 Banks v Goodfellow 62 The Mental Capacity Act 2005 62 A scheme for supported will-making 64 Acting as a supporter 65 Appointing a supporter 65 Guidance on support 68 Safeguards 69 Providing for the scheme in law 70 iv CHAPTER 5: FORMALITIES 72 Introduction 72 The purpose of formalities 73 The current law of formalities 75 Presumption of due execution 75 The formalities required by section 9 76 Reform 83 The need for a will to be in writing 84 Signature of a will on behalf of the testator – a new restriction? 85 Reforms relating to witnesses 86 Privileged wills 92 A dispensing power 94 Registration of wills 102 CHAPTER 6: ELECTRONIC WILLS 105 Introduction 105 Potential advantages of the use of technology in will-making 106 The current law 107 Enabling electronic wills 111 Uncertainty in the current law 113 Electronic signatures: methods and challenges 113 Typed names and digital images of handwritten signatures 115 Passwords and PINs 117 Biometric signatures 119 Digital signatures 121 Conclusions 124 Storage of electronic wills 124 Video wills 125 The use of video evidence in relation to wills 128 Electronic wills and a dispensing power 129 CHAPTER 7: PROTECTING VULNERABLE TESTATORS: KNOWLEDGE AND APPROVAL AND UNDUE INFLUENCE 130 Introduction 130 Knowledge and approval 131 The meaning of knowledge and approval 131 Timing 132 Evidence and presumption 132 The two stage and one stage approaches to knowledge and approval 133 Mistakes 136 Undue influence 136 Equitable Undue Influence 137 Relationships of influence 138 v Calling for explanation 139 The presumption of undue influence 140 Testamentary undue influence 140 The approach to testamentary undue influence 141 Recent case law 142 Undue influence and fraudulent calumny 143 The relationship between knowledge and approval, undue influence and capacity 144 Knowledge and approval and capacity 144 Knowledge and approval and undue influence 146 Reform 149 Undue influence 149 Costs 158 The effect of reform 160 Knowledge and approval 161 CHAPTER 8: CHILDREN MAKING WILLS 163 Introduction 163 Does the current law cause inconvenience or injustice? 164 Comparison with other areas of law 166 Contract and gifts 166 The age of 16 as a threshold for decision making 167 Is an absolute rule necessary? 168 CHAPTER 9: INTERPRETATION AND RECTIFICATION 172 Introduction 173 The current law 173 Interpretation 173 Rectification 175 Relationship between rectification and interpretation 176 Reform 177 The order of interpretation and rectification 178 Interpretative provisions in the Wills Act 1837 180 New interpretative provisions 182 Widening the doctrine of rectification 184 Interaction with a dispensing power 185 vi CHAPTER 10: ADEMPTION 186 Introduction 186 Classification of gifts in a will 186 The law of ademption 187 The rationale for ademption 188 Reform 190 The respective position of attorneys and deputies 190 Incomplete transfers and options to purchase 194 Gifts of shares 197 Simultaneous death and destruction of property 198 Are wider reforms required? 199 Ademption by events beyond the control of the testator 199 Ademption where an interest in property is retained by the testator 201 CHAPTER 11: REVOCATION 202 Introduction 202 Another will or codicil 203 Express revocation 203 Implied revocation 203 Proof of revocation 204 Written intention to revoke 204 Destruction 205 Act of destruction 205 Intention to revoke 206 Reform 207 Marriage 209 Exceptions 210 Reform 211 CHAPTER 12: MUTUAL WILLS 216 Introduction 216 The Current Law 216 Execution of wills pursuant to an agreement 217 Agreement that the survivor shall be bound by the arrangement 217 The death of the first party 218 The effect of the mutual wills arrangement 218 Property subject to the trust 219 Problems in the law 220 Reform 221 Abolition 221 Placing mutual wills on a statutory footing 222 vii Changing the definition of net estate under the Inheritance (Provision for Family and Dependants) Act 1975 222 CHAPTER 13: DONATIONES MORTIS CAUSA 226 Introduction 226 The current law 228 Contemplation of impending death 229 Gift conditional on death 230 Delivery of dominion 231 Effect of DMC 232 Problems with the law 234 Should DMC be abolished? 236 CHAPTER 14: OTHER THINGS A WILL COULD DO 238 Introduction 238 Digital assets 238 Burial and cremation 242 Guardianship 244 CHAPTER 15: CONSULTATION QUESTIONS 246 APPENDIX 1: PROVISIONS AUTHORISING MINORS TO MAKE WILLS 262 Succession Act 1981 (Queensland) 262 Wills Act 1997 (Victoria) 263 Succesion act 2006 (New South Wales) 264 Wills Act 1936 (South Australia) 265 APPENDIX 2: WILLS ACT 1837 – SECTIONS 23 TO 31 266 APPENDIX 3: DRAFT WILLS ACT 1994 (VICTORIA) 268 viii Glossary and abbreviations “Ademption”: where a gift in a will does not take effect at the testator’s death because the subject matter no longer exists or has fundamentally changed; for example because it has been given away or sold.
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