A Dorset legal expert has given a cautious welcome to moves to update the ‘Victorian-era’ law on disputed and contentious Wills.

Matt Rushent, a Bournemouth-based Solicitor in the Dispute Resolution department of Ellis Jones Solicitors, says a long-standing ‘need for change’ has finally been recognised. His comments follow the publication of a Law Commission report, Modernising Wills Law, which has been accompanied by a draft Bill due to go through Parliament.

Once on the statute book, it will modernise provisions of the Wills Act 1837, legislation that has governed the making of Wills since the year Queen Victoria ascended the throne.

Matt, whose caseload includes disputed Wills, trusts and other aspects of inheritance, said:

“The Commission is rightly seeking to bring this Victorian-era law into the 21st century. Areas likely to see change include: the legal test for determining mental capacity to make a Will; what should happen when someone alleges undue influence has taken place; and removing the law that a Will is revoked upon a subsequent marriage or civil partnership."

“On capacity, the Commission is recommending that the test should align with the Mental Capacity Act of 2005 rather than outdated and archaic case law. In other words, a person should understand the ‘reasonably foreseeable’, not just the ‘immediate’, consequences of making a Will."

“The concern will lie where someone is helped by another to make a decision and has merely ‘borderline capacity’, a situation allowed by the 2005 Act. And we will need to see how the law will treat instances where assistance was not given for one reason or another. On undue influence, the proposed change is on the burden of proof needed to stand up an allegation."

“It can often be an uphill battle evidentially so the Commission is recommending that in circumstances where the court is satisfied that there are ‘reasonable grounds’ to suspect undue influence, a presumption will arise. I believe this change will be welcomed. Many legal practitioners can quote cases where it is quite clear that undue influence was the only logical explanation for someone’s decision, but the evidence, for one reason or another, has not arisen."

“The number of court cases concerning undue influence could well rise because of this change, coupled with the fact that Covid-related lockdowns and restrictions fostered the perfect conditions for coercive relatives to bring Wills into existence."

“On revocation of a Will, the issue tends to involve situations where a person, perhaps elderly or without sufficient capacity, is induced to marry or enter a civil partnership by a ‘predator’.

“Up to now, any pre-existing Will they may have, leaving an estate to children for example, is thereby revoked unless it can be shown to have been made in contemplation of that marriage or civil partnership.

“Because of the way we live now compared to the 19th century, with extended periods of cohabitating and different family arrangements, I think the Commission is right to recommend abolition of this rule."

“Apart from anything else, the legal test of capacity to marry has required a lower level of capacity than that required to make a Will, so there have been many family disputes involving the issue of revocation.”

Among other changes in the Bill, children aged 16 and 17 will be able to make Wills just as adults can and courts will have greater flexibility to infer testamentary intent in the absence of a specific formality around, for example, signing, witnessing or attesting.

The Commission has also called for appropriate systems and controls to govern the use of electronic Wills.

Matt added: “The Commission’s report is likely to be welcomed by practitioners and the public alike and we eagerly await the draft Bill’s journey through Parliament and, ultimately, what makes it onto the statute books."

“The attention and scrutiny being placed on this just goes to show how important the question of making a Will is. We always stress the need to ensure you receive professional advice when considering how you are going to leave your estate and that you discuss the decisions in your Will with your lawyer to ensure they would stand up to challenge after you have gone.”