News

With great (potential) power comes great speculation. The Law Commission’s recommendations to expand the Courts’ powers in their recent report on the reform of wills law is no exception. In bringing our three part late summer series to a close we take a look at the proposals for (i) a bold new dispensing power for the Courts, (ii) an expansion to the Courts’ power to rectify wills, and (iii) a reversal of a centuries old rule surrounding the revocation of wills.

Dispensing Power

Current Position

A will either complies with the formalities required under English and Welsh law such that it is valid, or it does not (see s9 Wills Act 1837). The Court does not have the power to interfere and dispense with these formalities, even where the invalid will / document reflects the testator’s wishes.

Recommendation

In an attempt to further testamentary freedom in the UK, the Law Commission believes the Court should have the ability to interfere (in certain circumstances). To address this, the Law Commission recommends the introduction of a new dispensing power. This power would, upon the testator’s death, allow the court to dispense with the formality requirements if a document exists which otherwise sets out the testator’s wishes. The exact form this power would take is unknown, but the Law Commission discussed two alternatives:

(i) a power which would allow the Court to dispense with requirements where the formalities have been followed to a sufficient extent; or

(ii) a power to recognise a will despite non-compliance with s9 Wills Act 1837 when it is satisfied that to do so will give effect to the testator’s intentions.

Potential Impact

In the event that a wider power is introduced, particularly in its infancy, the Court could see an increase in cases where individuals bring forward evidence and
documents which purport to reflect the deceased’s testamentary intentions. This could increase the risk of (i) undue influence and (ii) partial intestacy (in cases where the evidence does not deal with the entirety of a person’s estate).

Despite reports that countries such as South Africa and Australia who have already adopted a dispensing power have not seen an increase in litigation, it feels like an inevitability.

Rectification

Current Position

Section 20 of the Administration of Justice Act 1982 currently allows the Court to rectify a will where it is satisfied that the will does not carry out the testator’s intentions due to (i) a clerical error or (ii) a failure to understand the testator’s instructions. In conjunction with this, there are limited powers to rectify under the common law, including the ability to omit words included accidentally whose omission would give effect to the testator’s intentions.

Crucially, the current powers of the Court to rectify do not cover drafting errors, in other words errors caused by a failure to appreciate the effect of the words used. It is this gap which the Law Commission seeks to address.

Recommendation

The Law Commission accordingly proposes that the Court’s power to rectify under s20 be extended to allow a will to be rectified where the error in question is due
to a ‘failure to understand the meaning or direct effect of the language used in the will’.

Potential Impact

This would bring the Courts’ powers of rectification for wills in line with those relating to other unilateral documents, such as voluntary lifetime settlements.

While admitting that this might invite increased litigation, the Law Commission notes that; (i) rectification under s20 is inherently a discretionary remedy (i.e. there is no absolute right to rectification) and (ii) the Courts require ‘convincing evidence’[1] before granting rectification, both of which should help to deter spurious claims.

Revocation

Current position

It has long been the case that upon entering a new marriage an individual simultaneously bids farewell to their existing will, which is automatically revoked. Exceptionally, if a testator makes a will in contemplation of an upcoming marriage or civil partnership, and it is it clear from the will’s drafting that it is not intended to be revoked by the marriage, it can remainvalid, albeit this is rarely seen in practice.

Recommendation

The Law Commission has called for this rule to be abolished, allowing pre-existing wills to survive new marriages and civil partnerships.

Potential Impact

In the Law Commission’s eyes such a change would:

(i) increase testamentary freedom;

(ii) more accurately reflect what many people intend or expect to happen considering that the current position is not publicly well known; and

(iii) add a layer of protection for vulnerable people at risk of a form of financial abuse whereby a forced marriage occurs to revoke an existing will and entitles the new spouse to a large part of their estate through the intestacy rules (i.e. minimum 50% plus a fixed sum), termed ‘predatory marriages’ by the report.

Of course, many or all of the proposals put forward by the Law Commission and examined by this “Summer Series” may never come to fruition. Nevertheless, in light of their potential practical impact it is important to keep the proposals in mind when engaging with the law on wills.

If you require assistance or advice with the preparation of your testamentary documents, or you have any questions about the information in this article, please contact our private client team, or our litigation team as applicable, who would be delighted to assist.

[1] Re Segelman (deceased) [1996] Ch 171, 184 by Chadwick J (as he then was)