You don’t need to have seen a headline about the latest high profile will dispute to know that challenges are often made around a deceased person’s estate – most of us know someone who has been involved in such a matter.
It’s an all too common argument but it’s one that at present, is usually resolved by the final say of the all-powerful signed and witnessed will; the deciding factor in such disputes.
However, this could all be about to change. The Law Commission has recently indicated that the current approach, drawn up in 1837, as belonging to a by-gone era.
To bring matters up to date, the Law Commission believes that the rules need to be changed to take into account the fact that we live in a digital age. In practice this means that the likes of text messages, emails and electronic signatures could be used as evidence of the existence of a will.
This would enable judges to decide cases ‘on the balance of probabilities’ and creates a whole new cavern of possibilities. People would be more able to make last minute death bed decisions around their will – perhaps by using a tablet or recording a voice message – and there would be ample more scope for unhappy relatives to contest the way an estate is divided.
The Law Commission is also considering whether or not the Mental Capacity Act 2005 should be considered when someone is making a will; a move to factor in the growing number of people with dementia.
A decision on these potential moves will be made in November this year. However the suggestions have already been met with concern, with director of Age UK, Caroline Abraham, saying:
“Whilst we welcome this public consultation, any proposed changes must not create further barriers for people who wish to plan ahead, and ensure that older people are able to make their own decisions wherever possible, free from pressure and coercion.”
Simon Thomas, a partner here at Hutchinson Thomas, is a specialist in the area and one of a handful of full members of the Association of Contentious Trust and Probate Specialists in Wales. He advised that this move highlighted the need for people to have professional support when planning their will:
“It is commonplace for disgruntled relatives to seek legal advice over the validity of wills although the number of successful challenges are relatively few. These proposals will increase the amount of litigation in this area and it is therefore advisable to have professional advice from a solicitor rather than having a home-made will or one with an unregulated will writer.
When making wills, solicitors can advise clients of ways of reducing the risk of such challenges as even if they eventually fail, the costs to the estate in defending them can be many thousands of pounds.”