The Law Commission

Making a will

Consultation Paper 231

© 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 psi@nationalarchives.gsi.gov.uk.

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.

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.

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

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

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

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

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

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

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. In such circumstances, the gift is said to “adeem” and the beneficiary will not receive anything from the estate in place of the gift.

“Administration of an estate”: the process of the personal representatives dealing with the estate of a deceased person by collecting money, paying debts and distributing the estate to those entitled under a will or the intestacy rules.

“Administrator”: a person who is authorised by letters of administration (granted by the court) to administer a deceased’s estate where no executor has been appointment, either because there is no will, the will does not appoint an executor or the executors that are appointed are unwilling or unable to act.

“Attorney”: a person appointed under a Power of Attorney, such as an Enduring Power of Attorney or Lasting Power of Attorney, to deal with that person’s affairs.

“Beneficiary”: a person who receives money or property under a will.

“Beneficial interest”: where a person has a beneficial interest in, or is the beneficial owner of, property he or she has the right to enjoy that property by using it or receiving any proceeds of sale. Such a person is also said to have equitable title to property, in contrast to legal title. Often, but not always, a person will be both the legal and beneficial owner of property.

“Chattel”: a physical object, other than real property; such as a piece of furniture or jewellery.

“Codicil”: a subsequent addition or amendment to a will.

“Construction”: the act of interpreting a will.

“Court of Protection”: the court which makes decisions in relation to issues concerning the health, welfare and financial affairs of a person who lacks the capacity to make such decisions him or herself.

“Deputy”: a person appointed by the Court of Protection to manage the welfare or property and affairs of a person who lacks the capacity to make such decisions on his or her own behalf.

“Donor” and “donee”: a donor is a person who gives something while a donee is someone who receives something. In this paper the donor may be giving property during his or her lifetime or making a donatio mortis causa (a special kind of gift given by a person in his or her lifetime, but that takes effect on death, discussed in Chapter 13). Alternatively, the donor may be giving the donee a power of attorney (such as a lasting power of attorney, or, before the coming into force of the Mental Capacity Act 2005, an enduring power of attorney).

“Disposition”: the making of a gift in a will.

“Enduring Powers of Attorney”: prior to the coming into force of the Mental Capacity Act 2005, people could obtain an Enduring Power to Attorney to authorise a trusted person to act for them if they could no longer manage their finances. See the Enduring Powers of Attorney Act 1985 (now repealed).

“Estate”: a person’s property, money and possessions.

“Execution”: the term used to refer to making a will that is in compliance with the formalities requirements in section 9 of the Wills Act 1837 so that the will is formally valid.

“Executor”: a person appointed by a testator in their will to administer a person’s estate following their death.

“Family provision”: the statutory scheme under the Inheritance (Provision for Family and Dependents) Act 1975 which gives the courts the jurisdiction to make provision from the deceased’s estate for certain categories of claimant, where the deceased ought to have made reasonable financial provision for that person.

“Formalities”: the formal requirements for a valid will set out in section 9 of the Wills Act 1837, such as that the will must be in writing and signed by the testator.

“Gift”: in this Consultation Paper, used to mean any benefit under a will.

“Grant of representation”: a generic term for a grant of probate or grant of administration.

“Grant of letters of administration”: the authority granted by a court to a person or number of people to allow him, her or them to deal with a deceased’s estate where there is no will, where the will does not appoint an executor or where the executors that are appointed are unwilling or unable to act.

“Grant of probate”: a legal document which authorises an executor (or executors) to manage the estate of a deceased in accordance with his or her will.

“Intestacy”: where a person dies without having made a valid will. The deceased is said to have died “intestate”.

“Lasting Powers of Attorney” (LPA): a legal document under which a person (“an attorney”) can be appointed to make decisions on behalf of a person who is unable to make his or her own decisions regarding welfare, money or property. See section 9 of the Mental Capacity Act 2005.

“Legal interest”: where a person has a legal interest in property, or is the legal owner, he or she has the right to deal with the property; for example to manage it, to sell it, or to make a gift of it. Such a person is also said to have legal title to property, in contrast to beneficial title. Often, but not always, a person will be both the legal and beneficial owner of property.

“Minor”: a person who is under the age of 18.

“Official solicitor”: the officer of the court who acts for a person who is unable to represent him or herself through a lack of capacity, where no other suitable person or agency is able and willing to act.

“Personal representative”: a generic term for either an executor or an administrator.

“Probate”: the legal process under which a will is proved as a valid will.

“Propound”: to advance a will as authentic. The propounder of a will claims that a particular document is the testators final will and that the provisions of that document should govern the distribution of the testator’s estate.

“Rectification”: the process of correcting a legal document, most commonly because of a typographical error.

“Residuary estate”: part of the deceased’s estate that has not been specifically disposed of in the will. The residuary estate includes any property which has been specifically disposed of where that disposition has failed; for example, where the intended beneficiary has predeceased the testator.

“Revocation”: the formal act of withdrawing a valid will. A will is, by its very nature, revocable by the testator until his or her death.

“Statutory will”: a will made by the Court of Protection on behalf of a person who lacks capacity.

“Testamentary capacity”: where a person has capacity to make a will.

“Testator”: a person who has made a will. Throughout this Consultation Paper, we use the term “testator” to refer to both male and female testators, though traditionally (and in legal documents) a female testator is referred to as a “testatrix”.

“Trust”: a trust is a means of separating legal from beneficial title; those who hold the legal interest in the property are called trustees and they hold the property for the benefit of those who have beneficial title, called beneficiaries. A trustee may also be a beneficiary in some cases.

“Will substitute”: an umbrella term sometimes used to describe legal means through which property is passed on death other than by a will, including by nomination in a private pension scheme and through payment of life assurance.

“Will writer”: professionals involved in the drafting of wills, acting otherwise than as solicitors or legal executives.

Chapter 1: Introduction

THE LAW COMMISSION’S REVIEW OF THE LAW OF WILLS

1. When we die our property passes to those we leave behind.1 For some people a will determines who receives the property: many thousands of people each year make wills or receive inheritances under wills. However, many people die without having made a will, that is, they die “intestate”. Estimates vary but it has been suggested that 40% of the adult population do not have a will.2 This project is concerned with the law relating to wills.3

   
   

2. The law in England and Wales that governs wills is, in large part, a product of the 19th century: the main statute is the Wills Act 1837, and the law that specifies when a person has the capacity to make a will was set out in a case from 1870.4 The law of wills needs to be modernised to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era. The significant changes relevant to a review of wills law include:

   
   

   1. the ageing population;

      
      

   2. the greater incidence of dementia;

      
      

   3. the evolution of the medical understanding of disorders, diseases and conditions that could affect a person’s capacity to make a will;

      
      

   4. the emergence of and increasing reliance upon digital technology;

      
      

   5. changing patterns of family life, for example, more cohabiting couples and more people having second families; and

      
      

   6. that more people now have sufficient property to make it important to control to whom it passes after their death.

      
      

      
      

      
      

      1 If there is no-one who can benefit, and we make no provision in a will for what should happen with our property, then our property goes to the Crown (or, alternatively, to the Duchy of Cornwall or Duchy of Lancaster).

      2 This was the Law Society’s view in its response to our 12th Programme public consultation, which suggested that we review the law of wills. Statistics support that estimate. There were 273,557 grants of representation for the 529,655 deaths registered in England and Wales in 2015. 40,409 were grants of letters of administration (that is, there was no will). For the 256,098 deaths where there was no grant it is not possible to know whether or not there was a will, but it is likely that most of these deaths were intestate.

      See Family Court Statistics Quarterly July to September 2016 and ONS webpage on Deaths at https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths (last visited 14 June 2017).

      3 We considered the law that governs instances in which a person dies without having left a will in our 2011 project, Intestacy and Family Provision: Claims on Death (2011) Law Com No 331. The project recommended reforms to the law of intestacy that simplified how assets pass on death where a person dies without a will, and which clarified the law that applies where a person makes a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The reforms were enacted by the Inheritance and Trustees’ Powers Act 2014.

      4 Banks v Goodfellow (1869-70) LR 5 QB 549 at 563.

3. Stakeholders agree that the law needs to be updated to improve clarity, bring it up to date and make it workable. In this consultation paper we set out the relevant law, explain what reforms we think could be made to the law and ask readers to answer questions that we ask about these potential reforms. Following the publication of this paper, there will be a formal consultation period for four months during which we will run consultation events aimed at eliciting views from the public and a broad range of stakeholders. Responses to the consultation paper should be sent to us by the end of those four months (10 November 2017) so that we can analyse them after the close of the consultation period. The final stage of the project will be the development of recommendations for reform of the law, which will be published in a report. Our report will be accompanied by an impact assessment, identifying the economic and non- economic effects of our recommendations for reform. The report may also be accompanied by a bill to change the law in line with those recommendations.

   
   

   HISTORY OF THE PROJECT

   
   

4. In the latter part of 2013 the Commission undertook a public consultation on the contents of its 12th Programme of Law Reform, to run from summer 2014. In response to that consultation, suggestions for the reform of the law of wills were received from leading representative legal bodies (the Bar Council, the Law Society, the Chancery Bar Association and the Association of Contentious Trust and Probate Specialists) and by a wide range of practising lawyers specialising in wills work. Consultation responses focused in particular on two main areas of the law of wills: testamentary capacity and formalities. The importance of will-making had also been emphasised repeatedly by Ministers and by the Opposition in Parliament; for example, during the progress of the Inheritance and Trustees’ Powers Bill, which implemented the recommendations of the Commission’s project on intestacy.5

   
   

5. The project was originally scheduled to start at the beginning of 2015, and some preliminary work was undertaken during that time. However, at the start of 2015 the Government asked the Commission to review the law of marriage. On Commissioners’ acceptance of this project, it was agreed that our work on wills should be put on hold. Following the publication in December 2015 of the scoping report “Getting Married”, we commenced the review of the law of wills, alongside other ongoing law reform work.

   
   

6. Since early 2016 we have been researching the law, potential reforms and, importantly, meeting a broad range of stakeholders to inform the preparation of this paper. We have met those involved in the drafting of wills, such as solicitors and will writers, and relevant government departments and bodies. We have also met a range of charities and other organisations that work with those who may have particular needs, or be particularly vulnerable, in respect of the will-making process, such as elderly people or those whose capacity to make a will might be affected by conditions such as dementia.

   
   

   
   

   
   

   5 Intestacy and Family Provision: Claims on Death (2011) Law Com No 331.

   WHAT IS A WILL?

   
   

7. In one respect this is an easy question to answer, as a will is one of the most familiar of legal concepts. Most people would recognise that “a will is an expression by a person of his or her wishes intended to take effect only at death”.6 In nearly all cases, wills made in England and Wales are written documents. However, in limited situations, where “privileged” wills are permitted, a will may be merely an oral declaration.7

   
   

8. More technically, the defining features of a will might be as follows:

   
   

   1. It is ambulatory, that is, subject to change or revocation. This means that the testator – the person making a will – has the opportunity to change his or her mind; the consequences of the document are not set in stone as soon as it is executed.

      
      

   2. The dispositions of property (and/or other instructions) in the will take effect upon the testator’s death.

      
      

   3. The testator must have intended the dispositions to be revocable and to take effect on his or her death.8

      
      

9. With regard to terminology we have taken the decision in this paper to use the term testator, which is the legal term for a person who makes a will. We use “testator” to refer to both male and female testators, though traditionally (and in legal documents) a female testator is referred to as a “testatrix”. We have considered whether it would be better to use a less technical term, such as “will-maker”. We rejected doing so, in the paper, because we were concerned that the term might be ambiguous; it could conceivably refer to someone who drafts a will professionally for someone else. We also recognised that many of the sources that we cite, or quote from, use the term testator and that it is also the word which many who read this paper, such as those in the legal profession, would expect us to use. Nonetheless, it is a term which the public may find strange or off-putting and we therefore ask whether it would be preferable, in a new Wills Act, to use a less technical term.

   
   

   
   

   6 Lesley King, Keith Biggs and Peter Gausden, A Practitioner’s Guide to Wills (2010) p 5.

   7 See para 5.75 below.

   8 Re Berger [1990] Ch 118 at 129 by Mustill LJ. This necessary intention is sometimes called the animus testandi.

   
   

   
   

   TESTAMENTARY FREEDOM AND THE INTESTACY RULES

   
   

10. One might ask why it is important to have a will. A will is not strictly necessary; if a person dies intestate the law intervenes, by way of the intestacy rules.9 These rules specify what should happen to a person’s property either where there is no will or where a will does not completely dispose of a person’s property. What the rules specify will depend on a person’s circumstances at the time of death, for example whether he or she was married, what other relatives he or she had and the value of his or her estate.

    
    

11. The intestacy rules are, however, a blunt instrument that will not work for many people. Most notably, no provision is made for a person’s cohabitant under the rules. This is obviously a serious issue for the many people in England and Wales who live together without being married or in a civil partnership. Likewise the intestacy rules may not give the result that would be wanted by some people who have remarried and have children from the first marriage. Many people also wish to leave a gift to charity in their will and the intestacy rules do not make provision for this.

    
    

12. In addition, the law of England and Wales places a great deal of emphasis on testamentary freedom – the freedom to make a will in whatever terms the testator wishes. This idea is the primary legal principle that underpins this area of the law and reflects a deeply rooted belief.10 A will is the means by which a person can exercise his or her testamentary freedom, rather than relying on the default position provided by the intestacy rules, although some may choose to exercise that freedom by deliberately not making a will.

    
    

13. Historically, an integral aspect of testamentary freedom has been the testator’s understanding of the moral obligations that he or she owes to others. In the case of Banks v Goodfellow it was said that the law provides testators absolute freedom to dispose of their property, but “a moral responsibility of no ordinary importance attaches to the exercise of the right thus given”. Because of their “instincts and affections”, testators will naturally make provision to those closest to them or for whom they have the most affection. Consequently, the testators’ family members, and particularly their

    
    

    
    

    9 The intestacy rules appear at Administration of Estates Act 1925, s46.

    10 See Intestacy and Family Provision Claims on Death: A Consultation Paper (2009) Law Com No 191, para 1.28.

    children, will have “reasonable and well warranted expectation[s]” that the testator will gift his or her property to them.11 Testators are also best able to determine who among their family members and friends are most deserving or most in need of assistance, or who have other claims arising from friendship or attachment. But testamentary freedom means that there is no obligation on us to do so, and our family and friends do not have a “right” to inherit our property.

    
    

14. There are, however, limits on testamentary freedom. If, for example, a testator does not have the capacity to make a will, he or she will not be able to exercise his or her right to make a will. In that situation, however, a will can be made for a person by the Court of Protection, which may allow an incapacitated person to express his or her wishes, at least to some extent, and therefore some degree of testamentary freedom.12 We refer below to other limitations on testamentary freedom.

    
    

    CONTEXT

    
    

15. We set out below a brief comment on areas which touch upon, and inform, our central focus on the law of wills.

    
    

    Probate and estate administration

16. In this paper our focus is the law of England and Wales governing wills; we do not consider reform of the process of probate by which either the testator’s wishes set out a will, or the rules of distribution contained in the intestacy rules, are then given effect.

    
    

17. Briefly, after a person’s death, a grant of representation will usually be required to allow a person’s personal representatives to administer or deal with his or her estate after death. This process of estate administration will involve collecting in money and property, paying debts and distributing the remainder of the estate to those who are entitled to receive it either because they are beneficiaries under a will or because they benefit under the intestacy rules.

    
    

18. A grant of representation will be either a grant of probate, obtained where the personal representatives are appointed in the will, or a grant of administration, granted where either the will does not appoint executors or the person died intestate. Where the personal representatives are appointed under a will they are called executors; those appointed by a grant of administration are called administrators.13 A grant of representation to the executors or those entitled to a grant of administration is made by the court; in practice, this is obtained by an application to the Probate Registry. The administration of an estate will often involve the payment of inheritance tax and, therefore, the completion of a tax form by the personal representatives to be sent to Her Majesty’s Revenue and Customs.

    
    

    
    

    
    

    11 Banks v Goodfellow (1869-70) LR 5 QB 549 at 563.

    12 A person’s “best interests” will govern the making of, and provisions within, a statutory will, under the Mental Capacity Act 2005 but best interests includes consideration of a person’s wishes and feelings. See Chapter 3, below.

    13 The law provides for whom is entitled to a grant of letters of administration; essentially this is a person’s next of kin. See Non-Contentious Probate Rules 1987, r 22(1).

    Other ways in which property may pass from the deceased to others on death

19. At least some of a person’s property will often pass on death by a method other than a will. This might be because the person owns property jointly with another person in what is known as a “joint tenancy”. When a joint tenant dies, the operation of a rule called “survivorship” means that the property simply remains with the surviving joint tenant or tenants; there is nothing for the person who has died to leave in his or her will.14 Many people will own a family home or bank accounts in this way. People may also have nominated a person to receive a benefit after their death under a pension scheme or an insurance policy. These sums will pass to others under the terms of those nominations, rather than according to the provisions of a will. These ways of passing on wealth on death are sometimes referred to as “will-substitutes”.15

    
    

    Challenges to a will after the testator’s death

20. We have already referred to the way in which a person’s testamentary freedom may be limited by incapacity during his or her lifetime. Testamentary freedom may also be limited by what happens after a person’s death. A will may be legally challenged on the basis that it is invalid: the person making such a claim may allege that the person did not, in fact, have testamentary capacity, or that he or she did not “know and approve” of the contents of the will, or that the will was the result of either another person’s “undue influence” over the testator, or fraud.16 The result of success in any of these arguments will be that the will is invalid and has no effect. The testator’s estate will then pass according to any earlier valid will or, if there is none, under the intestacy rules.

    
    

21. The terms of a will, or the intestacy rules, may also be superseded by claims that certain categories of people have on an estate. The law provides that after a person’s death certain categories of people related to the deceased, cohabiting with him or her, or financially dependent on him or her, are able to apply for financial provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. If such claims are successful they will change the disposition of the estate.17

    
    

    International law and the law of other jurisdictions

22. Later in this paper we discuss the relevance to wills of the United Nations Convention on the Rights of Persons with Disabilities. This Convention is an international instrument protecting and promoting the human rights of disabled people. Its relevance to the field of wills lies in Article 12 which deals with the right for disabled people to equality before

    
    

    
    

    14 The alternative would be for the person to own the property jointly as “tenants in common”. In this situation each joint owner will have a defined share of the property and, on each owner’s death, his or her share will pass to others either according to the provisions of his or her will, or under the intestacy rules.

    15 Other methods include statutory nominations, where under statutory provisions a person may pass on certain funds or investments on death by way of a written nomination, and the donatio mortis causa, for which see Chapter 13 for our discussion. See also A Braun and A Röthel (eds), Passing Wealth on Death: Will-Substitutes in Comparative Perspective (2016).

    16 These concepts are all discussed in later chapters of this paper.

    17 We note the recent Supreme Court decision in Ilott v Mitson ([2017] UKSC 17; [2017] 2 WLR 979) regarding a claim under the 1975 Act by an adult child of a deceased woman. The Supreme Court reinstated the order of the District Judge, reversing the order of the Court of Appeal which had made more generous provision.

    the law. We discuss the Convention further in our chapters on supported wills and statutory wills, where it is of most relevance.18

    
    

23. We have found it very helpful, when thinking about the problems in the law of wills in England and Wales, to consider the law of other jurisdictions. It is not always necessary to look far afield for such comparisons; the law in Scotland, is significantly different to that of England and Wales and provides a useful comparator.19 We have also looked at the law in European jurisdictions, the United States, Canada, Australia and New Zealand. Law reform in other jurisdictions has informed our analysis and proposals. For example, the recent work of the Victorian Law Reform Commission on Succession Law has been very useful, as has consideration of recent reform in British Columbia and the work of the US Uniform Law Commission on a Uniform Probate Code.20

    
    

    REFORM

    
    

    Scope

24. This project is a general review of the law of wills. Whilst broad in its scope, this consultation paper is not, however, exhaustive in its coverage of this area. We have, instead, sought to be selective and to focus on those areas where we think, or stakeholders have told us, that reform is most needed. We had previously set out, on the web page for the project,21 a list of examples of areas of the law of wills that we thought would be key in the project: will-making and testamentary capacity; what makes a will valid; the law on rectifying mistakes in wills; and mutual wills. Testamentary capacity, and the formalities needed to make a valid will remain of central importance to the project and we address these at length. In the course of preparing this paper the law on rectification, and mutual wills, has assumed less importance and we treat these topics relatively briefly, proposing either no, or minor, reform. Other topics, have, however, assumed greater importance, for example, the issue of whether a person knows and approves of the content of his or her will; whether he or she has been unduly influenced in making his or her will; the prospect of electronic will-making; and 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.

    
    

25. Notwithstanding our selective approach, we do, however, see one result of this project as being the creation of a more modern and improved Wills Act, to replace the Wills Act 1837.

    
    

26. There are certain areas of the law which intersect with the law of wills – as they may determine who is entitled to our property when we die – which we have excluded from

    
    

    
    

    18 Chapters 3 and 4.

    19 One example: it is possible to make a will at the age of 12 in Scotland, whereas people under the age of 18 cannot make wills in England and Wales. We discuss children and succession in our paper at Chapter 8.

    20 Succession Laws: Report (2013) Victorian Law Reform Commission; Wills, Estates and Succession: A Modern Legal Framework (2006) British Columbia Law Institute Report No 45; Report on common-law tests of capacity (2013) British Columbia Law Institute Report No 73; http://www.uniformlaws.org/shared/docs/probate%20code/UPC_Final_2016aug1.pdf (last visited 14 June 2017).

    21 http://www.lawcom.gov.uk/project/wills/.

    consideration in this project. We do not consider the law governing secret trusts22 or proprietary estoppel.23. Intestacy, family provision and “forced heirship” (that certain categories of a deceased person’s relatives – such as a spouse or a child – should have an entitlement to the deceased’s property that cannot be overridden by a will) are also beyond the scope of this project.

    
    

27. In our chapter on “Other things a will could do”24 we discuss the issue of digital “assets” such as social media and email accounts, digital music and photographs. These fall outside the sort of property that is normally dealt with by a will. We offer further observations in that chapter but, in brief, we take the view that a comprehensive consideration of this issue falls outside the scope of our project. This is because, in general, such “assets” are, in fact, a contractual agreement between the person and the relevant company (for example, an online music content provider). Any reform looking at, say, access by personal representatives to a deceased person’s social media account, would therefore have to consider the contractual basis of what has been purchased, and the likely conflict between contract law and the law of estate administration. The issue of passing on digital assets is also relevant in circumstances other than the death of the person who had the right to use the asset. Consideration of this issue therefore goes beyond the law of wills.

    
    

28. The regulation of the professional drafting of wills, or “will-writing,” also falls outside the scope of the project. Currently there is no regulation of who is permitted to write wills. The question of whether there should be any regulation was considered by the Legal Services Board in a 2013 report.25 The report recommended that will-writing should be regulated by being made a reserved legal activity, which only certain professions would be permitted to practise. The Government, however, rejected this approach. We understand that Government’s view has not changed and we do not consider that at this time the Commission could add value to the work already done by the Legal Services Board. Currently, therefore, wills continue to be prepared professionally by solicitors, legal executives, will writers and others.

    
    

29. In this paper we refer to “professionals” or “practitioners” preparing wills as including all those preparing wills for remuneration. We do not distinguish between different sorts of professionals unless we say so explicitly.

    
    

    
    

    
    

    22 A secret trust arises when a person inherits property, either under a will or on an intestacy, but the person who takes the property has promised to hold it on trust for another person (without there being any indication in the will that that is the case).

    23 Proprietary estoppel will operate in the testamentary context where one person has made a promise to another that he or she will inherit an asset on the first person’s death and that other person has acted to his or her detriment in relying on that promise: for example, a person might work for reduced wages on the family farm because she has been promised by his or her parents that he or she will inherit the farm on her mother’s death.

    24 Chapter 14.

    25 Legal Services Board, “Sections 24 and 26 investigations: will-writing, estate administration and probate activities” (2013), available at http://www.legalservicesboard.org.uk/Projects/pdf/20130211_final_reports.pdf (last visited 14 June 2017).

    Objectives of reform

30. In making provisional proposals for reform and discussing possible solutions to the problems in the law, we have borne in mind several aims:

    
    

    1. Supporting testamentary freedom, including reform aimed at encouraging and facilitating will-making and reform aimed at supporting testators’ intentions.

       
       

    2. Protecting the testator from fraud and undue influence.

       
       

    3. Increasing the clarity and certainty of the law in this area, in so far as this is possible.

       
       

31. Consistent with the first objective, we do not suggest reforms that would prevent testators drafting their own wills and necessitate the additional involvement of a legal professional, for example, a new form of will that could only be made with the assistance of a practitioner. While it may often be advisable for a testator to obtain legal advice when making a will, the law should not directly or indirectly require it.

    
    

32. The latter two objectives are tempered by the need for flexibility in the law of wills. It is possible to take a “formalist” approach to wills, so that the emphasis is on compliance with, for example, strict rules as to formalities for a valid will. In general, however, there has been a move towards a more “functionalist” approach which places the emphasis on the purpose that formalities, and other rules in the law of wills, are seeking to perform, rather than being concerned with strict adherence to precise requirements.26 The latter approach, which we support, necessarily means that the law is less certain than it might be, but for the good reasons of making it more just and responsive to the facts of a particular case.27

    
    

    Beyond law reform

33. There are problems in the practice of will-making that cannot be solved by law reform. Stakeholders have told us about a wide range of reasons that people give for not making wills; for example, fear of death, or superstition. We have also been told that it can be difficult for practitioners to find witnesses for wills in hospital or care settings, possibly as a result of policies that seek to prevent staff engaging with the making of wills in these situations because of a fear of subsequent litigation. It may be helpful for those making such policies to review whether they are strictly necessary, given the barriers that they can place in the way of will making.

    
    

34. Many practitioners have also told us that they are concerned about market forces driving down the fees that they can charge for drafting a will to a point where it becomes uneconomic for professionals to continue to offer this service. This may in turn impact on the availability of professional advice about making a will. On the other hand, this

    
    

    
    

    
    

    26 See for example, J Langbein “Excusing harmless errors in the execution of wills: a report on Australia’s tranquil revolution in probate law” [1987] 1 Columbia Law Review 1; J Lindgren, “The fall of formalism” (1991-1992) 55 Albany Law Review 1009; “Should we admit Informal Wills to Probate” [2007] Conveyancer and Property Lawyer 289; D Horton, “Tomorrow’s Inheritance: The Frontiers of Estate Planning Formalism” (forthcoming) Boston College Law Review, Vol 58.

    27 A dispensing power, which we discuss in Chapter 5, is an example of taking a functionalist approach to this area of the law.

    view is not shared by all who draft wills professionally and we consider that it is a matter for individual practitioners, or firms, to address in the way that they think best. What is adequately remunerative work for one practitioner will not be so for another. The Law Commission does not offer a view on this issue or suggest solutions, beyond expressing the hope that a clearer, and more modern, law of wills may make it easier to advise clients and therefore, potentially, reduce the time taken to deal with certain aspects of the process of making a will.28

    
    

    IMPACT

    
    

35. We need to know as much as possible about the practical context in which wills are made, in order to inform our assessment of the impact, both economic and non- economic, of our recommendations for reform. The Association of Contentious Trust and Probate Specialists, a representative organisation of practitioners involved in this work, has kindly undertaken a survey of its members for us covering issues such as:

    
    

    1. how practitioners take instructions from clients;

       
       

    2. how much a professionally drafted will costs, including the cost of additional items such as a report from a suitably qualified professional on a person’s capacity to make a will; and

       
       

    3. the issues that cause problems when a will is being drafted.

       
       

36. We would be grateful if those who respond to our consultation could consider whether they have any information on these issues which they could provide. We would also be interested to understand:

    
    

    1. The reasons why people do, or do not, make a will.

       
       

    2. What the impact is on those left behind by the testator when there is a dispute about the testator’s will; for example, the cost of litigation. What is the impact if a will is declared to be invalid and the estate passes by the intestacy rules?

       
       

       
       

       
       

       28 We do note that some practitioners choose to write wills on a distance basis so that instructions are taken remotely, without meeting the client, and sophisticated software may be used to assist in case management and drafting. This approach may offer economies of scale and allow the firm to offer lower priced wills which still make a profit. Typically, contracts for the provision of such services will exclude an assessment of a testator’s capacity to make a will.

       STRUCTURE OF THIS CONSULTATION PAPER

       
       

37. This paper begins by considering in Chapter 2 the testator’s capacity to make a will. We consider the different ways in which the law approaches the question of a person’s capacity to make a will and the problems with that approach, before going on to provisionally propose that a new approach is adopted—using the test in the Mental Capacity Act 2005. We consider how testamentary capacity should be assessed, provisionally proposing the introduction of a statutory code of practice.

    
    

38. In Chapter 3 we consider the special circumstance of wills made on behalf of an incapacitated person by the court. We take the provisional view that reform is not required to the rationale for why such wills are made or to how the court exercises its discretion, and ask whether any reform could usefully be made to the procedure.

    
    

39. In Chapter 4 we ask for consultees’ views on a possible new scheme for supporting the making of wills in circumstances where testators who would otherwise not have capacity could be supported to do so.

    
    

40. In Chapter 5 we move on to consider the formalities that are necessary for a will to be valid, such as signature by the testator and two witnesses. We ask whether the current formalities are a barrier to making a will and discuss possible reforms aimed at improving the protection provided to testators where someone signs the will on their behalf, and in relation to who can witness a will. We explain the problems with the requirement that the witnesses “attest” a will and provisionally propose that this requirement be removed. We consider the law that allows people in the armed forces, as well as seamen, to make wills without complying with the usual formality requirements – “privileged wills”. We propose that the scope of that doctrine be clarified so as to include only members of the UK armed forces and civilians serving alongside them. Finally we propose that a power should be introduced allowing the court to dispense with the required formalities on a case by case basis, and discuss how that should operate.

    
    

41. We then focus, in Chapter 6, on how the law should respond to the possibility of making a will electronically, rather than on paper. We open the way for the future adoption of electronic wills by proposing the introduction of a power in legislation enabling the Government to authorise this form of will, while leaving the detail of how this is done to be decided in the future. Accordingly, we also provisionally propose that the law should be clear that electronic signatures do not currently meet the requirement that a will be signed. We consider the possible methods that might be used to enable electronic wills, and their challenges.

    
    

42. In Chapter 7 we discuss how the law protects vulnerable testators by setting out when a testator will be found to know and approve the terms of his or her will, and when the will is the product of the testator’s free will (that is, the testator has not been unduly influenced to make a will which he or she would not otherwise have made). We analyse how these two areas relate to each other and to the testator’s capacity to make a will and propose that the law of undue influence in the testamentary context be reformed to provide greater protection to the testator. We also propose complementary reform to narrow the scope of the requirement of knowledge and approval. We explain the relevance in this area of the law governing whether one party should be ordered to pay

    the other’s legal costs and why we do not think that reform is required, before checking this conclusion with consultees.

    
    

43. In Chapter 8 we consider whether it should be possible for children to make a will and provisionally propose that the age at which a valid will can be made should be reduced from 18 to 16. We ask consultees whether the court should have the power to authorise children under that age to make a will, and who should assess whether they have the capacity to do so.

    
    

44. Chapter 9 looks at how the law allows mistakes in a will to be rectified in certain circumstances and how this relates to the way the court will interpret a will. We do not consider that any major reform is required in this area, beyond the reproduction in any new statute of the interpretive provisions contained in the Wills Act 1837, and, potentially, the repeal of certain obsolete provisions. However, we ask consultees questions designed to check our conclusions.

    
    

45. In Chapter 10 we explain the law of ademption: broadly, what happens when the subject of a specific gift in the testator’s will is no longer in his or her estate at the time of death. We propose reforms to update the law of ademption with regard to several different circumstances: disposals of property by a person appointed under a power of attorney; where the testator dies before a transaction is completed; where there is a gift of shares; and where property is destroyed simultaneously with the death of the testator. We also ask whether wider reforms are required.

    
    

46. The ways in which a will can be revoked are explored in Chapter 11 where we conclude that no reform is required to most of the methods by which a will can be revoked. However, we ask consultees whether consideration should be given to changing the current rule that the testator’s marriage automatically revokes his or her pre-existing will. We propose that, should that rule be retained, it should not apply where the testator lacks testamentary capacity at the time of the marriage.29

    
    

47. Chapter 12 considers a particular form of will - the mutual will – made by two or more people and which prevents the survivor(s) changing his or her will after the death of the first testator. We propose a reform to the law in this area to provide the court, where a family provision claim under the 1975 Act has been made, with the power to make orders against property which is the subject of a mutual wills arrangement.

    
    

48. In Chapter 13 we examine a way of making a gift that is a hybrid between a lifetime gift and a gift made in a will: the donatio mortis causa. We explain how this sort of gift is an anomaly but one where the limits of the doctrine have recently been considered by the Court of Appeal. We explain the problems in the law and ask consultees whether the donatio mortis causa should be abolished.

    
    

49. Finally, in Chapter 14, we reflect on what else testators consider when they write their wills other than disposing of their property. We discuss the issues of digital “assets” (such as social media accounts), burial and cremation and the appointment of guardians for children, asking consultees questions about the first and last of these topics.

    
    

    
    

    29 A person can simultaneously have capacity to enter a valid marriage, but lack testamentary capacity.

    ACKNOWLEDGEMENTS AND THANKS

    
    

50. We have held a number of meetings with individuals and organisations while we have been preparing this paper, and we are extremely grateful to them all for giving us their time and expertise so generously.

    
    

51. We would like to extend our thanks to Action on Elder Abuse; Alzheimer’s Society; Professor Peter Bartlett; Professor Alexandra Braun; Juliet Brook; Dementia UK; the Digital Legacy Association; Baroness Finlay of Llandaff; Foot Anstey; Gedye & Sons; Professor Birke Häcker; Professor Rosie Harding; Professor Jonathan Harris; Headway; Siôn Hudson; Hugh James; Professor Robin Jacoby; Professor Roger Kerridge; Dr Ying Liew; former Senior Judge Denzil Lush; Sue MacLeod; Mencap; MND Association; Daniel Monk; the Office of the Public Guardian; the staff of the Official Solicitor and Public Trustee; Dame Esther Rantzen DBE; Penelope Reed QC; the Probate Service; Sarah Rochira, the Older People’s Commissioner for Wales and her staff; the Royal Hospital for Neuro-Disability; Gary Rycroft; Sense; Dr Brian Sloan; the Society of Will Writers; Solicitors for the Elderly; VoiceAbility; Withers; the attendees at the STEP workshop on Capacity on 11 September 2014, and the attendees at the Current Issues in Succession Law conference at All Souls College, Oxford on 10 and 11 July 2015.

    
    

52. In particular, STEP (Society of Trust and Estate Practitioners) and the Wills and Equity Committee of the Law Society have kindly invited us to meetings and provided very useful feedback on our provisional proposals, while ACTAPS (the Association of Contentious Trust and Probate Specialists) have been very helpful in conducting a survey of their members with regard to will-writing and will disputes.

    
    

    THE TEAM WORKING ON THE PROJECT

    
    

53. The following members of the property, family and trust team have contributed to this report at various stages: Matthew Jolley (team manager); Spencer Clarke (team lawyer); Elizabeth Welch (legal assistant); Mairi Innes (research assistant); Damien Bruneau (research assistant); Maxwell Myers (research assistant).

Chapter 2: Capacity

INTRODUCTION

1. Capacity refers to a person’s ability to do something. In law, capacity is a concept which refers to the person’s ability or power to do something which may have legal consequences, whether for the person doing the action or making the decision or for others.1

   
   

2. Capacity can refer to a number of different characteristics a person must possess in order to act or make a decision. Age is one example.2 To have capacity to make a will a person must be at least 18 years old.3 Often, however, capacity refers to mental capacity. Mental capacity is the focus of this chapter, and throughout this chapter, when we use “capacity,” we mean mental capacity.

   
   

3. Mental capacity refers to a person’s cognitive ability to perform an act or make a decision. Whether a person has cognitive ability is inevitably a question of degree; the law does not hold a person to lack capacity simply because he or she has a disorder, illness or impairment. Rather, the law sets a threshold for when the degree of the disorder, illness or impairment renders a person incapable to do the act or make the decision.4 Capacity therefore refers to the degree of understanding sufficient for the act or decision in question.

   
   

4. In 1857, Lord Cranworth famously described capacity in the following, old-fashioned but poetic, terms:

   
   

   … between such an extreme case [of obvious mental incapacity] and that of a man of perfectly sound and vigorous understanding, there is every shade of intellect, every degree of mental capacity. There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.5

   
   

   There is an important respect in which Lord Cranworth’s metaphor requires qualification. A person’s transmission from capacity to incapacity is not necessarily linear. Capacity may fluctuate according to the effect of a disorder, illness or impairment, so that a person who does not have capacity today, or this morning, may have regained

   
   

   
   

   1 The British Medical Association and the Law Society, Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers (4th ed 2015) para 1.1.

   2 See Wills Act 1837, s 7. British Columbia Law Institute, Report on Common-Law Tests of Capacity (BCLI Report no 73, 2013) pp 11 to 12.

   3 Children under the age of 18, in accordance with Wills Act 1837, s7 as amended by Family Law Reform Act 1969, s3(1)(a) do not have capacity to make a will – see Chapter 8.

   4 British Columbia Law Institute, Report on Common-Law Tests of Capacity (BCLI Report no 73, 2013) pp 1 and 12 to 13; Boyse v Rossborough (1857) 10 ER 1192, 1210.

   5 Boyse v Rossborough (1857) 10 ER 1192, 1210.

   capacity this afternoon, or tomorrow.6 The crucial question is always whether the person had capacity at the time the decision was made or the act carried out.

   
   

5. The law in England and Wales does not have a single test for capacity that is used for all purposes. Instead, the law takes what is known as a “functional approach”.7 Under this approach, a person’s capacity is assessed for a particular decision that has been made, or for a particular act that has been done. Different thresholds of capacity are required for different decisions and acts, based on their gravity and complexity. Consequently, the fact a person has capacity to make one decision (for example, to enter a simple contract to buy milk or a newspaper) does not necessarily mean that he or she will be found to have capacity to make a different decision (such as to enter a more complex contract like a credit agreement). How a person’s capacity should be assessed, as acknowledged in the Law Commission’s Consultation Paper on capacity, is a matter of debate.8

   
   

6. Many of the tests of capacity were developed over time within the common law. Each common law test attempts to assess the level of understanding sufficient for the decision at hand. Consequently, under the common law there is a test of capacity to marry,9 to consent to medical treatment,10 to enter into a contract,11 to make a lifetime gift,12 and so on.

   
   

7. The Mental Capacity Act 2005 (“MCA”)13 provides the legal framework in England and Wales for acting and making decisions for and on behalf of people aged 16 and over who lack the mental capacity to make particular decisions for themselves. It imposes a single test of capacity upon a broad range of decisions – specifically financial, healthcare and welfare decisions which may need to be made on behalf of a person who permanently or temporarily lacks capacity to make those decisions for him- or herself.14 The MCA also outlines the principles and the framework that govern decisions relating to a person’s capacity. The MCA affirms the functional approach taken by the common law in assessing capacity.15

   
   

   
   

   6 Fluctuating capacity is considered in detail in Mental Capacity and Deprivation of Liberty (2017) Law Com No 372 at para 9.38. Will making presents fewer difficulties in this regard than deprivation of liberty.

   7 An explanation of different legal approaches to capacity, including the functional approach, is given in our 1991 consultation paper, Mentally Incapacitated Adults and Decision-Making: An Overview (1991) Law Com No 119.

   8 Mentally Incapacitated Adults and Decision-Making: An Overview (1991) Law Comm No 119, para 1.2.

   9 See, for example, Sheffield City Council v E [2004] EWHC 2808 (Fam), [2005] Fam 326 at [68] to [69] and following.

   10 Capacity to consent to medical treatment is governed by the MCA test; however, this enshrines the pre-existing common law test. See, for example, In Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819.

   11 See, for example, Boughton v Knight (1873) LR 3 P&D 64 at 72.

   12 See, for example, Re Beaney (Deceased) [1978] 1 WLR 770.

   13 The Mental Capacity Act 2005 enacted recommendations from the Law Commission’s report Mental Incapacity (1995) Law Com No 231.

   14 We address the difference between the common law test for testamentary capacity and the MCA test for capacity at 2.43 below.

   15 The British Medical Association and the Law Society, Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers (4th ed 2015) para 3.1.

8. The various common law tests of capacity nevertheless remain important. First, although it is far from clear, recent case law suggests that, unless the MCA explicitly applies to a decision, the common law test continues to apply.16 Secondly, even where the MCA applies, the pre-existing common law test may still be relevant to an assessment of capacity. The common law tests provide useful guidance on the considerations relevant to assessing capacity to make the particular decision in issue.17 Thirdly, the MCA is supplemented by the MCA Code of Practice, which includes a detailed illustration of the common law approach to lack of capacity. Under section 42(4) of the MCA, anyone who is acting in relation to a person who lacks capacity and is doing so in a professional capacity or for remuneration18 is under a duty to have regard to the Code of Practice.

   
   

9. We note that the test of whether a person has capacity to make a will or, as it is usually described, testamentary capacity, appears to be a common law test. Following the enactment of the MCA there has been some uncertainty as to whether testamentary capacity should now be decided under that Act, rather than under the common law test. While the matter is not beyond doubt the prevailing view, as confirmed by Re Walker,19 is that the common law test continues to apply. We discuss the common law test below.20 We also discuss the disparity that exists within the context of making a will, created by the continued application of the common law test but the application of the MCA test to the making of a statutory will for a person who lacks capacity to make his or her own will.21

   
   

   THE EFFECT OF INCAPACITY

   
   

10. If a person lacks capacity, the law will not afford any legal consequences to a decision that person purports to make. Consequently, an assessment of incapacity can result in a person being deprived of autonomy. Moreover, for many decisions, if a person is assessed as lacking the capacity to make a decision, a person or the court will be empowered to make a decision on that person’s behalf, referred to as substituted decision-making.22 In the context of the law of wills, if a person lacks testamentary

    
    

    
    

    
    

    16 Re Walker [2014] EWHC 71 (Ch), [2015] COPLR 348 (capacity to make a will; Kicks v Leigh [2014] EWHC 3926 (Ch), [2015] 4 All ER 329 (capacity to make a gift).

    17 C Bielanska (ed), Elderly Client Handbook (5th ed 2016) para 1.5.

    18 Mental Capacity Act 2005, s42(4)(e) and (f).

    19 [2014] EWHC 71 (Ch), [2015] COPLR 348. The Court of Appeal suggested that the Mental Capacity Act 2005 would govern testamentary capacity for wills made after the Act was in force in Simon v Byford [2014] EWCA Civ 280, [2014] WTLR 1097 at [39]. However, the point did not need to be decided in that case as, the will was made before the coming into force of the Mental Capacity Act 2005.

    20 See para 2.18 below.

    21 See para 2.58 below.

    22 The common law and MCA both exclude certain personal decisions from being able to be made on a person’s behalf, for example, whether to marry or to consent to sexual relations: Mental Capacity Act 2005, s 27; Mentally Incapacitated Adults and Decision-Making: An Overview (1991) Law Commission Consultation Paper No 119, paras 2.26 and 2.27, citing Hunter v Edney (1885) 10 PD 93 and R v Howard [1965] 3 All ER 684, respectively.

    capacity, the Court of Protection may, on an application made on behalf of the person, make a statutory will on his or her behalf.23

    
    

11. If a person is determined to have lacked testamentary capacity at the time when he or she made a will, then the will is invalid. The person’s estate will pass under a previous valid will, if one exists, or under the rules of intestacy. Neither of these outcomes may reflect the person’s wishes at the time of his or her death. As we have explained in the introduction to this consultation paper, the freedom to make a will in whatever terms a person wishes—testamentary freedom—is the foundation of succession law in England and Wales and is a deeply rooted principle. A finding of incapacity may deny a person his or her testamentary freedom.

    
    

12. The effect of incapacity is therefore significant. But while a finding of incapacity infringes on a person’s autonomy and testamentary freedom, neither of those values—whilst important—is absolute. Both may be qualified where there is justification for doing so. The justification for qualifying these values through a test of capacity is to provide an important protective or safeguarding function. Tests of capacity protect a person from abuse or exploitation. Ultimately, rather than depriving a person of his or her autonomy and testamentary freedom, the test of capacity upholds those values. By ensuring that a will is valid only when the testator had the ability to make the will, capacity is one of the ways in which the law ensures that a will does in fact represent the autonomous decision of the testator and is a genuine exercise of his or her testamentary freedom.

    
    

13. The test of capacity must therefore strike a careful balance. If the test is too strict, it may become an unjustified infringement on individual autonomy and testamentary freedom. But if the bar for capacity is set too low, then the law may fail to provide an effective safeguard against abuse or exploitation.

    
    

14. The question whether a person has (or had) testamentary capacity may be raised prospectively or retrospectively. Where a will is being written professionally, such as by a solicitor, the solicitor will need to be satisfied that the testator has capacity. The solicitor will therefore consider the test of capacity prospectively before preparing the will to be executed by the testator. Alternatively, after the testator has died, someone may seek to challenge the validity of a will on the grounds that the testator did not have capacity. When such a challenge is made, the question of the testator’s capacity must be determined retrospectively; the question asked is whether the testator had capacity at the time the will was executed.24

    
    

    CAUSES OF INCAPACITY

    
    

15. A person’s capacity can be impaired for many reasons. Stakeholders have highlighted to us that medication, pain levels, altered biochemistry, infection, stress, hypoglycaemia (low blood sugar) and other temporary conditions or states can impair capacity. A person with a terminal illness, receiving palliative care and being treated with medication for pain management, may also have impaired capacity. In addition to this variety of

    
    

    
    

    23 Mental Capacity Act 2005, s 18(1)(i) and sch 2, in accordance with the Mental Capacity Act 2005 test rather than the common law test. See the discussion of statutory wills at Chapter 3 below.

    24 Under the rule in Parker v Felgate, which we discuss below (at para 2.89 and following) it may be sufficient for the testator to have had capacity at the time he or she gave instructions for a will.

    causes, a person’s capacity may be impaired, in particular, as a result of a learning disability, a personality disorder or through mental illness, including dementia.25

    
    

16. It is important to emphasise two points that we have made above.26 First, that a person’s incapacity may be temporary. Where a testator’s capacity is fluctuating, it is important for a will to be made during a period in which the person has capacity. Similarly, a loss of capacity will be temporary where the cause of its loss is temporary; for example, during a period of treatment for an illness, or recovery from an operation. Secondly, the mere fact that a person has a learning disability, personality disorder or mental illness does not mean that he or she lacks capacity. Indeed, the fact of diagnosis (for example of dementia) may be the prompt for a person to make his or her will. The question always is whether the effect of the disability, disorder or illness is such as to mean that the individual does not have capacity to make a will. The complexity of the person’s estate and of the proposed dispositions will be significant, as well as the extent of the mental impairment. For example, in the recent case of Burns v Burns27 the simplicity of the will appears to have been a factor in the court finding that the testatrix, who had dementia, had capacity to make it.

    
    

17. A loss of capacity may, however, be permanent; for example, in the later stages of dementia. Further, a person may never have had capacity; such as a person born with a profound learning disability.

    
    

    THE CURRENT TEST OF TESTAMENTARY CAPACITY

    
    

18. The common law test of testamentary capacity is contained in the judgment of Cockburn CJ in the case of Banks v Goodfellow:28

    
    

    It is essential … that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.29

    
    

19. It can therefore be summarised that the testator must have the capacity to understand:

    
    

    1. that he or she is making a will, and the effect of his or her testamentary disposition;

       
       

       
       

       
       

       25 See M Frost, S Lawson and R Jacoby, Testamentary capacity (1st ed 2014) para 2.21. The MCA refers to a person lacking capacity “…because of an impairment of, or a disturbance in the functioning of, the mind or brain.” (MCA, s2(1)).

       26 See para 2.3 and 2.4 above.

       27 [2016] EWCA Civ 37.

       28 (1870) LR 5 QB 549. While the test is now widely referred to as the Banks v Goodfellow test, the essence of the test was reflected in earlier cases. See eg Greenwood v Greenwood (1790) 3 Curt App 30 and Harwood v Baker (1840) 3 Moo PC 282 at 290, cited in M Frost, S Lawson and R Jacoby, Testamentary Capacity (1st ed 2014) paras 2.01 to 2.05.

       29 Banks v Goodfellow at 565.

    2. the extent of his or her estate and therefore the property that can be disposed of in his or her will;

       
       

    3. those who have claims on the estate; and

       
       

    4. this understanding must not be impaired by any disorder of the mind or delusions.

       
       

20. It is unclear whether (3) and (4) above are in fact two separate requirements. We discuss this issue below.30

    
    

21. The test in Banks, being of the 19th century, has had to be adapted for modern day use. For example, in Key v Key, which considered the effect of bereavement on testamentary capacity, Mr Justice Briggs said that:

    
    

    The Banks v Goodfellow test must be applied so as to accommodate this [the effect of bereavement], among other factors capable of impairing testamentary capacity, in a way which, perhaps, the court would have found difficult to recognise in the 19th century.31

    
    

    Nevertheless, in the 2006 case of Sharp v Adam32 Lord Justice May expressed the view that the test in Banks was still fitting and was not in need of substantial reformulation.

    
    

22. In Hoff v Atherton33 it was recognised that focus on the actual understanding of the testator, in accordance with the wording of “shall understand” in Banks, was an “over- literal approach to a judicial statement”.34 So, the test is whether the testator is capable of understanding the testamentary disposition, not whether they actually understand it; nor is it a test of memory.

    
    

23. Each limb of the test will now be considered in more detail.

    
    

    Limb (1): nature and effect

24. The requirements of the first limb are fairly straightforward: the testator must understand the nature and effect of the will, and that it reflects what he or she wishes to happen to his or her estate on death. With regard to the effects of the disposition, the testator does not have to understand the collateral consequences of the testamentary disposition, but

    
    

    
    

    30 See para 2.37 below.

    31 [2010] EWHC 408 (Ch), [2010] 1 WLR 2020 at [95]; referred to with approval in Re Wilson (deceased)

    [2013] EWHC 499 (Ch), 2013 WL 617649.

    32 [2006] EWCA Civ 449, [2006] WTLR 1059 at [82].

    33 [2004] EWCA Civ 1554, [2005] WTLR 99.

    34 Above, at [34]. However, concern has been expressed that those who do not understand, but have the capacity to understand, are a group of people whose capacity it is very difficult to assess: see M Frost, S Lawson and R Jacoby, Testamentary capacity: law, practice and medicine (1st ed 2015) paras 2.28 to 2.32. The authors of Williams, Mortimer and Sunnucks note that “unfortunately, the distinction does not seem to have been considered in any of the cases, because it did not need to be on the facts”: Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (19th and 7th ed 2008) para 13-03.

    the immediate consequences.35 For example, in Simon v Byford,36 the testator understood the dispositions she made of shares in a company amongst her children, but did not appreciate that the effect would be to create voting deadlock among shareholders. The will was found to be valid.

    
    

    Limb (2): extent of the estate

25. The testator is also required to be able to understand the extent of his or her estate. Being capable of recalling the extent of one’s estate does not mean having to be able to give a precise valuation.37 An example of the application of this limb is the case of Wood v Smith in which it was noted that the testator “really was confused and did not have any sufficient capacity properly to comprehend … the real extent of his property”.38

    
    

    Limb (3): claims

26. The third limb requires the testator to understand and appreciate the claims “to which he [or she] ought to give effect”. Harwood v Baker39 provides an example of a will that failed to meet the third limb of Banks v Goodfellow. In that case, the testator left his whole estate to his wife, to the exclusion of the rest of his family. He was found to lack capacity because he was not sufficiently aware (so that he could decide whether to discount them) of the existence of other family members and of their potential claims on his estate.

    
    

    Limb (4): disorder of the mind or delusions

27. Delusions generally are fixed beliefs that an individual cannot be talked out of.40 The nature and effect of delusions under the test in Banks v Goodfellow is worth explaining in detail.

    
    

28. Delusions do not always cause a lack of testamentary capacity, but they can do so if they had (or were capable of having) an influence on the content of the will.41 For example, in the case of delusional jealously (called Othello syndrome) an individual might become convinced that his or her spouse is cheating on him or her. The delusion only affects capacity to the extent of its subject matter:

    
    

    Their cognition and mental state remain otherwise intact and thus their capacity would not be affected, except in the very specific areas affected by their delusional belief.42

    
    

    
    

    35 Simon v Byford [2014] EWCA Civ 280, [2014] WTLR 1097 at [45]. Unlike the common law test, the MCA test does not distinguish between immediate and collateral consequences: Walker v Badmin [2014] EWHC 71 (Ch), [2015] COPLR 348 at [25].

    36 Simon v Byford [2014] EWCA Civ 280, [2014] WTLR 1097.

    37 Scammell v Farmer [2008] EWHC 1100 (Ch), [2008] WTLR 1261 at [97].

    38 [1993] Ch 90 at 106.

    39 (1840) 13 ER 117.

    40 M Frost, S Lawson and R Jacoby, Testamentary Capacity (1st ed 2014) para 12.58.

    41 Smee v Smee (1879) 5 PD 84.

    42 Above at 228.

29. The impact of delusions on testamentary capacity can be demonstrated by the case of Kostic v Chaplin,43 in which a testator was held to lack testamentary capacity as he was suffering under the delusion that there was an international conspiracy of dark forces colluding against him. Further, in Walters v Smee44 a will was successfully challenged on the basis that the testatrix was deluded as a result of dementia by an incorrect belief that the beneficiary under her previous will had abused her.45

    
    

30. Nevertheless, testators have a right to act capriciously; a testator can be “eccentric” without being delusional.46 This was recently reaffirmed in The Vegetarian Society v Scott,47 in which it was held that the testator had capacity. The testator suffered from mental illness (he was a schizophrenic) and whilst leading an eccentric life, he was still capable of maintaining professional relationships, managing his affairs and giving clear instructions for a will. This was even so despite the fact he left his entire estate to the Vegetarian Society, when he was not a vegetarian; it was noted in the case that the testator did not feel the usual bond of natural love and affection towards his family.

    
    

31. However, the more capriciously a testator has acted, the more likely it is that the court will find that he or she was suffering from a delusion. For example, a testator can take a harsh view of his or her child, but at a certain point such a view will be so harsh and irrational so as to become a delusion.48

    
    

    Burden of proof

32. Usually a will is admitted to probate without proof of capacity unless it is challenged.49 When capacity is brought into question the burden of proof lies on the person propounding the will (the person who is offering the will for probate and therefore alleging that the testator had capacity).50 However, if the person propounding the will can demonstrate that the will is formally valid and looks rational,51 the burden of proof is re-shifted. Only if sufficient evidence is raised to bring doubt upon capacity, does the propounder have to prove capacity.52 The burden of proof in cases of disputed testamentary capacity is therefore highly mobile, and stakeholders have argued that it is unclear where the burden of proof lies in many such cases. It was affirmed more generally in Cowderoy v Cranfield53 that “if the provisions of a will are surprising, that

    
    

    
    

    43 [2007] EWHC 2298 (Ch), (2007-08) ITELR 364.

    44 [2008] EWHC 2029 (Ch), [2009] WTLR 521.

    45 See generally for further examples, H Smith, “A review of testamentary capacity” (2016) 160(15) Solicitors Journal 11.

    46 Pilkington v Gray [1899] AC 401.

    47 [2013] EWHC 4097 (Ch), [2014] WTLR 525.

    48 Boughton v Knight (1872-75) LR 3 P & D 64.

    49 Sutton v Sadler (1857) 3 CBNS 87.

    50 Smee v Smee (1879) 5 PD 84.

    51 Symes v Green (1859) 1 Sw & Tr 401.

    52 See generally Key v Key [2010] EWHC 408 (Ch), [2010] WTLR 623 at [97].

    53 [2011] EWHC 1616 (Ch), [2011] WTLR 1699.

    may be material to the court’s assessment of whether the testator did have capacity, or indeed, knew and approved of the terms of the will”.54

    
    

    PROBLEMS WITH THE BANKS V GOODFELLOW TEST

    
    

33. Many stakeholders have told us that the Banks v Goodfellow test works well, and is well understood by those who apply it. The test succinctly and effectively addresses the fundamental requirements for capacity in the context of making a will, covering what someone without expertise in the law would intuitively think necessary to make a will. It is a specific test to assess capacity for a specific issue – making a will.

    
    

34. Moreover, many commonwealth jurisdictions also continue to use the test developed from Banks v Goodfellow.55 In its recent review of the common law tests of capacity, the British Columbia Law Institute decided against recommending change to the Banks v Goodfellow test (beyond introducing a legislative presumption of capacity). It noted that the common law test, with hundreds of years of precedent, is well-established in the case law.56

    
    

35. Other stakeholders have expressed concern with the test. The language of the case now appears archaic. It may be understood by lawyers who are well-versed in dealing with the test, but is unlikely to be readily appreciated by lay people or other professionals, such as social workers,57 called upon to make assessments of capacity. At the very least, recasting the test in a modern form would make it more readily understandable and therefore more easily applied.

    
    

36. There are in particular three problems discussed in this section. Two of these problems relate to the test itself; the other relates to uncertainties surrounding the relationship between the test and other provisions.

    
    

    Three or four limbs?

37. Specific ambiguities exist in respect of the relationship between the third and fourth limbs of the test. The ambiguity relates to the requirement “that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property”.58 As noted above, it is unclear whether these words form part of the third limb of the test or (as we have presented them) are a fourth limb. The point may have practical significance on the scope of the test. If the reference to disorders of the mind and delusions is part of the third limb of the test, then the question is whether the testator’s understanding of the claims on him or her is affected by a disorder or

    
    

    
    

    54 [2011] EWHC 1616 (Ch), [2011] WTLR 1699 at [133].

    55 For example, Scotland (Sivewright v Sivewright’s Trustees 1920 SC (HL) 63 and Smyth v Romanes’s Executors [2014] CSOH 150, 2014 GWD 33-642 (OH)); Canada’s common law provinces (see eg Schwartz v Schwartz [1970] 2 OR 61, 10 DLR (3d) 15 at 32 by Laskin JA dissenting on other grounds (Ontario Court of Appeal); Australia (see eg Tipper v Moore (1911) 13 CLR 248 (High Court of Australia); New Zealand (see eg Woodward v Smith [2009] NZCA 215 (Court of Appeal of New Zealand).

    56 British Columbia Law Institute, Report on Common-Law Tests of Capacity (BCLI Report no 73, 2013) pp 40 to 46.

    57 See para 2.112 below.

    58 Banks v Goodfellow (1870) LR 5 QB 549, at 565.

    delusions. If the test consists of four limbs, however, then the question is whether the testator’s decision generally was affected in this way.

    
    

38. There are inconsistent Court of Appeal judgments on the issue of whether a three or four limb test applies. The Court followed the three-limbed approach in Hawes v Burgess.59 In this case a woman changed her will to exclude one of her three adult children. The Court of Appeal doubted the decision of the judge at first instance, who had found that the testator lacked testamentary capacity but did not express a concluded view on the subject as it agreed with the judge that there was also a lack of knowledge and approval.60 In Sharp v Adam, a man who was in the final stages of progressive multiple sclerosis made a new will leaving his entire estate to employees who managed his stud farm, leaving nothing to his two daughters, who had been the principal beneficiaries under the previous will. The Court of Appeal in that case identified four limbs to the Banks v Goodfellow test and stated that this fourth element “…is concerned as much with mood as with cognition.”61 It was not possible to find a rational reason for the testator leaving his daughters nothing at all, the court having accepted the first instance judge’s finding that the testator had a good relationship with his daughters. This finding provided the basis on which the Court of Appeal held that the judge’s decision that the testator lacked testamentary capacity could not be overturned:

    
    

    the court must inquire why a testator has disinherited his children where there is a possibility that it is due to disease of the mind. In a latter passage, the deputy judge said, with reference to Harwood v Baker, that the justice or otherwise of Mr Adam excluding his daughters must as a matter of common sense have a bearing and cannot be excluded from consideration. We agree with this, provided that the inquiry is directed to the testator’s soundness of mind, and not to general questions of perceived morality.62

    
    

39. The fourth limb of the test may therefore be needed to account for illnesses affecting a testator’s personality rather than his or her cognitive ability.

    
    

40. The words “…with a view to the latter object…” in Banks may suggest that the following words in respect of delusions and disorders of the mind relate only to the previous (third) limb of the test. However, it seems illogical to limit the effect of “delusions” (or their modern equivalent, including disorders of mood) only to that limb. We are therefore inclined to agree with the Court of Appeal in Sharp v Adam63 that the test should be understood as having four elements, noting that the four-limbed approach was adopted by the High Court in Kostic v Chaplin.64 It is not clear, however, in practice, that the distinction has caused significant problems. We suggest that reform should clarify the position.

    
    

    
    

    59 [2013] EWCA Civ 9, [2013] WTLR 453.

    60 Above at [61], [64], [66], [69] and [70].

    61 [2006] EWCA Civ 449, [2006] WTLR 1059, at [93].

    62 Above at [79].

    63 [2006] EWCA Civ 449, [2006] WTLR 1059.

    64 [2007] EWHC 2298 (Ch).

    Does not reflect modern understandings of capacity

41. More generally, it has been questioned whether the test in Banks v Goodfellow is appropriate given that it was created before many developments in modern medicine. Its focus on disorders of the mind and delusions does not reflect the wide range of factors that are now understood to have the potential to affect a person’s capacity.65 In particular, the test does not reflect the significance of dementia in the context of assessments of capacity. The test dates back to a time when “rarely did [people] outlive their minds”.66 In the context of an ageing population67 where dementia has become increasingly prevalent, it might be argued that “there is clearly scope here for a new test for testamentary capacity which would consign Banks v Goodfellow to history”.68

    
    

42. Conversely, some developments in the common law test, designed to bring it up to date, such as the one in Key v Key69 reflecting the impact of bereavement,70 have led to criticism by stakeholders that the current test is unclear. Such criticism may suggest that the law has now reached the stage where piecemeal developments cannot produce a simple, clear and effective test that reflects modern understandings of capacity.

    
    

    The relationship between Banks v Goodfellow and the Mental Capacity Act 2005

43. The problems with the test in Banks v Goodfellow that we have discussed so far relate to the nature of the test itself. A further problem that has arisen concerns the relationship between the common law test of testamentary capacity and the MCA. As we have explained above, that Act provides a single test of capacity to a broad range of financial, healthcare and welfare decisions.71 Since the enactment of the MCA, it has been unclear whether the courts should use the test of capacity contained in the MCA to the question of testamentary capacity or continue to apply the test in Banks v Goodfellow.

    
    

44. As we noted above, following Re Walker72 the prevailing view is that testamentary capacity continues to be determined by the common law test. This judgment was in line with the opinion of Mr Stephen Smith QC in Scammell v Farmer,73 but contrary to the opinion of Judge Dight in Fischer v Diffley.74 However, some stakeholders argue that, in the absence of the judgment of a higher court, the question is not entirely settled and

    
    

    
    

    65 See para 2.15 above.

    66 H Marten, “Protecting the future” (1999) 96(11) Law Society Gazette 50.

    67 In 2015, there were an estimated 556,270 people aged 90 and over, compared to 194,670 in 1985: Office of National Statistics, “Estimates of the very old (including centenarians), UK: 2002 to 2015, 29 September 2016. By 2035, it is estimated that 23% of the population will be aged 65 or older, while only 18% will be under 16: Office of National Statistics, “Older People’s Day 2011”, 1.

    68 H Marten, “Protecting the future” (1999) 96(11) Law Society Gazette 50.

    69 [2010] EWHC 408 (Ch), [2010] 1 WLR 2020 at [95]; referred to with approval in Re Wilson (deceased)

    [2013] EWHC 499 (Ch), 2013 WL 617649.

    70 See para 2.21 above.

    71 See para 2.7 above.

    72 [2014] EWHC 71 (Ch), [2015] WTLR 493.

    73 [2008] EWHC 1100 (Ch), [2008] WTLR 1261.

    74 [2013] EWHC 4567 (Ch), [2014] WTLR 757.

    could benefit from clarification. There is therefore one obvious criticism about the law here: it is uncertain.

    
    

45. The uncertainty matters because potential differences between the two tests have been identified.75 It also matters because the fact of the existence of two tests, and any differences between them, may cause confusion to those responsible for undertaking capacity assessments and make it that much more difficult for them to develop knowledge and expertise in relation to assessing testamentary capacity.

    
    

46. To understand the differences between the two tests it is necessary to explain the test for capacity provided in the MCA.

    
    

    The test of capacity in the Mental Capacity Act 2005

47. Sections 1 to 3 are the relevant sections of the MCA for assessments of capacity. Section 2(1) sets out the definition of a person who lacks capacity:

    
    

    For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

    
    

    The determination of whether the lack of capacity is due to an “impairment” or “disturbance” is commonly known as the diagnostic test.

    
    

48. Section 3(1) outlines the circumstances in which a person is unable to make a decision for him- or herself, providing a “functional test”:

    
    

    For the purposes of section 2, a person is unable to make a decision for himself if he is unable–

    
    

    1. to understand the information relevant to the decision,

       
       

    2. to retain that information,

       
       

    3. to use or weigh that information as part of the process of making the decision, or

       
       

    4. to communicate his decision (whether by talking, using sign language or any other means).

    
    

49. Section 3 further provides that relevant information includes the “reasonably foreseeable consequences” of making a decision or failing to make a decision. It outlines that a person is not to be regarded as unable to understand the information relevant to a decision if he or she can understand an explanation of the information “given … in a way that is appropriate to his [or her] circumstances”, and moreover that because a person can only retain the relevant information for a short time does not prevent him or her from being regarded as unable to make the decision.

    
    

    
    

    
    

    75 See para 2.54 below.

50. The test, and therefore the determination of capacity under the MCA, is specific to the decision that is being made. Case law has confirmed that the correct order for the application of the two stages, as required by the wording of the MCA, is for the functional test to be considered first.76 The test for capacity under the MCA therefore asks:

    
    

    1. Is the person unable to make a decision for him- or herself in relation to the matter?

       
       

    2. Is the person unable to make the decision because of an impairment of, or a disturbance in the functioning of, his or her mind or brain?

       
       

51. The order of these enquiries is important: it emphasises the requirement that the impairment or disturbance must cause the person to be unable to make a specific decision. That an impairment or disturbance is significantly related to, or impairs, the person’s ability to make a decision is insufficient to meet the test. Accordingly, an impairment or disturbance making a person vulnerable is not an issue of capacity, but of undue influence, which we discuss in Chapter 7 below.77

    
    

52. Sections 1 and 2 set out additional principles which must be considered in assessing capacity.

    
    

    1. A person must be assumed to have capacity unless it is established that he or she does not (section 1(2)).

       
       

    2. A person is not to be treated as unable to make a decision unless all practicable steps to help him or her do so have been taken without success (section 1(3)).

       
       

    3. A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision (section 1(4)).

       
       

    4. It does not matter whether the impairment or disturbance is permanent or temporary (section 2(2)).

       
       

    5. A lack of capacity cannot be established merely by reference to a person’s age or appearance, or a condition or aspect of behaviour that might lead others to make unjustified assumptions about his or her capacity (section 2(3)).

       
       

    6. A question of whether or not a person lacks capacity must be decided on a balance of probabilities (section 2(4)).

       
       

53. The MCA test of capacity is both decision- and time-specific. Rather than assessing whether the person is able to make decisions generally, it asks whether the person is able to make a particular decision that needs to be made at the time it needs to be

    
    

    
    

    76 PC v City of York Council [2013] EWHC Civ 478, [2014] Fam 10 at [58] to [60] by McFarlane LJ; Kings College Hospital NHS Foundation Trust v C [2015] EWCOP 80, [2016] COPLR 50 at [33], [71] and [93]. The test is stated the wrong way round in the Code of Practice issued by the Lord Chancellor:, Mental Capacity Act 2005 Code of Practice (2007) paras 4.10 to 4.13.

    77 PC v City of York Council [2013] EWHC Civ 478, [2014] Fam 10 at [58] by McFarlane LJ; Kings College Hospital NHS Foundation Trust v C [2015] EWCOP 80, [2016] COPLR 50 at [31], [34] and [93].

    made. Consequently, a person can have capacity under the MCA to take one decision but not another.78

    
    

    The Mental Capacity Act 2005 and the Banks v Goodfellow test compared

54. Nicholas Strauss QC (sitting as a deputy judge of the High Court) in Re Walker79 suggested three differences between the MCA test and the common law Banks v Goodfellow test.80

    
    

    1. Section 1(2) of the MCA provides for a presumption of capacity, whereas it is initially on the propounder of a will to prove capacity under the common law test.

       
       

    2. Section 3(1) of the MCA would require a testator to understand all the relevant information; this is not required by the common law test “which concentrates on whether the will correctly represents the testator’s intentions and his appreciation of the claims to which he ought to give effect”.

       
       

    3. Subsections 3(1) and 3(4) would require a testator to be capable of understanding the reasonably foreseeable consequences of the potential choices that can be made. Under the common law test, a testator only has to understand the immediate, not collateral, consequences of his or her will.81

       
       

55. However, the extent to which the above points constitute material differences can be questioned.82 Although the common law does not import a presumption of capacity unlike section 1(2) of the MCA, the burden of capacity is easily shifted; this distinction may not, in practice, produce different results given that testamentary capacity is usually decided on the evidence. Moreover, like section 3(1) of the MCA, the Banks v Goodfellow test requires the testator to understand all the relevant information, with the relevant information being the information set out in the test (the nature and effects of a will, the extent of the property, and claims on the testator). Some stakeholders have suggested to us that they see little or no difference between the tests in practice and that Banks v Goodfellow test encapsulates all that is required in the MCA.

    
    

56. Another difference in the tests, highlighted by Penelope Reed QC, is that the common law test is modified by the case of Parker v Felgate83 so that, if a testator gives instructions to a solicitor to make a will, the testator does not have to fully understand the will when it is later being executed. According to Penelope Reed, this aspect of the common law test “sits very unhappily with the concepts under the MCA which require

    
    

    
    

    78 See Dunhill v Burgin [2014] UKSC 18 at [13] by Lady Hale.

    79 [2014] EWHC 71 (Ch), [2015] WTLR 493.

    80 Above, [21] to [25].

    81 Simon v Byford [2014] EWCA Civ 280, [2014] WTLR 1097 at [44] to [45]. In that case, it meant that the testator did not need to be able to understand how the disposition of shares in the company equally among her children meant that no one had a controlling interest in the company making deadlock possible. We do not know if Mrs Simon was incapable of understanding deadlock but we know that it did not, in fact, occur to her when she made the will. We cannot say definitively whether the case would have been decided differently had the MCA test for capacity been applied, but it is possible that would have been the case.

    82 See J R Martyn, A Learmonth, J E Gordon, C Ford and T Fletcher, Theobald on Wills (18th ed 2016) para 3- 007.

    83 (1883) 8 PD 171.

    the person to have capacity at the material time that the transaction is being carried through”.84 We discuss Parker v Felgate further below.85

    
    

57. Others have criticised the conclusion reached in Re Walker86 because it leaves a disparity in the law.87 As we have noted above if a person lacks testamentary capacity, then the Court of Protection may, on an application made on behalf of the person, make a statutory will on his or her behalf. In determining whether a person lacks capacity for the purpose of making a statutory will, the Court of Protection uses the test set out in the MCA. If, however, a person has made, or wishes to make a will, then the common law test is applied. It is anomalous that the same question – whether a person has testamentary capacity – should be determined according to a different test depending on the circumstances in which the question is raised.

    
    

58. The fundamental difficulty in the existence of two tests is that it leads to a risk of conflicting conclusions being drawn by the Court of Protection applying the MCA and other courts applying the common law. For example, although rarely used in isolation, section 15 of the MCA gives the Court of Protection power to make declarations as to a person’s capacity to make a decision (including to make a will).88 It is unclear whether the Court of Protection should apply the MCA test or the common law test. As a statutory court empowered by the MCA, it is not evident that the Court of Protection can apply the common law test. But a declaration by the Court that the testator had capacity under the MCA may not prevent a will from being challenged after death on the grounds that the testator lacked capacity under the common law test.

    
    

    REFORM

    
    

59. The longevity of the Banks v Goodfellow test may suggest that it performs its task well and is understood by courts, solicitors and testators alike. We have concluded, however, that the problems with the current law mean that reform is required.

    
    

60. Moreover, although Re Walker89 determined that the Banks v Goodfellow test continues to govern assessments of testamentary capacity rather than the MCA test, stakeholders have continued to express concern that this issue has not yet been conclusively settled. Whatever we ultimately propose for reform of the law of capacity, we think it is necessary to provide certainty on the issue of which test applies.

    
    

    
    

    
    

    84 P Reed, “Capacity and want of knowledge and approval” in B Häcker and C Mitchell (eds) Current Issues in Succession Law (2016) p 174.

    85 See para 2.89 below.

    86 [2014] EWHC 71 (Ch), [2015] WTLR 493.

    87 A Ruck Keene and A Lee, “Testamentary capacity” [2013] Elder Law Journal 272, H Cumber, “Case note: Simon v Byford in the Court of Appeal: Banks v Goodfellow revisited” [2014] 3 Private Client Business 142, 147, P Reed, “Capacity and want of knowledge and approval”, B Häcker and C Mitchell (eds) Current Issues in Succession Law (2016) p 175.

    88 In order to make any decisions on a person’s behalf, or empower a person to do so, pursuant to Mental Capacity Act 2005, s 16, the Court of Protection must make a declaration under s 15; however, it is rare for it to make a s 15 declaration in isolation.

    89 [2014] EWHC 71 (Ch), [2015] COPLR 348.

61. We have considered, but rejected, two possible approaches to reform. The first would be to replace the Banks v Goodfellow test with one of the existing medical assessments doctors use to assess testamentary capacity. For example, the most commonly used test by doctors is the Mini Mental State Examination (“MMSE”), which consists of “a series of questions that test orientation, episodic memory, concentration, language comprehension, writing and copying a diagram”.90 Other examples include the Montreal Cognitive Assessment (“MOCA”) and the Abbreviated Mental Test Score (“AMTS”). These tests would provide simplicity most result in a numeric score, which can be categorised along a spectrum of capacity or cognitive ability. Consequently, they are rather blunt instruments which: do not provide a detailed or contextual assessment of capacity and do not take into account the complexity of the will the person intends to make.91 In short, these types of assessment are neither nuanced enough nor accurate enough to be used as a legal test for testamentary capacity.

    
    

62. Moreover, in our view, reforming the test of testamentary capacity to make it a test relying exclusively on medical evaluation is undesirable. Although doctors may be involved in assessing a person’s capacity at the time of making a will, ultimately whether or not a person had testamentary capacity will be determined by a court; a court is better able to apply and assess a legal test than a medical test.92 Medical tests are also arguably more suitable to contemporary assessments of capacity than retrospective assessments after the death of the testator.

    
    

63. Significantly, the use of a simple medical test to assess capacity would also appear to fall foul of the requirements in the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which we discuss further below.93 By relying entirely on medical notions of disability, without any consideration of how they relate to the understanding involved in making a will, such a test would discriminate against persons with disabilities.

    
    

64. A second approach would be to propose an entirely new test to assessing testamentary capacity, not based on Banks v Goodfellow, the MCA, or even an existing medical test. We have rejected this approach as it does not seem necessary or desirable to create a legal test of capacity out of thin air. Ignoring hundreds of years of case law and the work on capacity that led to the MCA in order to strike out on an entirely new and untested path would appear foolhardy.

    
    

65. Having discounted these options, we provisionally propose that the MCA is adopted as the test for testamentary capacity, with the specific elements that a testator is required to understand outlined in the MCA Code of Practice. We explain the reasons for this proposal in the following section. We then suggest an alternative option for reform, which is to place Banks v Goodfellow on a statutory footing.

    
    

    
    

    90 M Frost, S Lawson and R Jacoby, Testamentary capacity (1st ed 2014) para 14.08.

    91 See M Frost, S Lawson and R Jacoby, Testamentary Capacity (1st ed 2014) ch 14.

    92 See M Frost, S Lawson and R Jacoby, Testamentary Capacity (1st ed 2014) para 2.11.

    93 See para 3.16 below.

    Adoption of the Mental Capacity Act 2005 test

66. There are a number of benefits of adopting the MCA test for testamentary capacity. Adopting the MCA would promote a consistent and cohesive approach to the law to assessing mental capacity and the MCA arguably provides a more modern approach to capacity. Furthermore, adopting the MCA would eliminate the issue of the Court of Protection applying the MCA test while other courts apply the Banks v Goodfellow test to determine testamentary capacity.

    
    

67. Our preference for adopting the MCA test is reinforced by the fact that doing so could maintain the virtues of the Banks v Goodfellow test while resolving or avoiding the technical issues that the common law test has produced.

    
    

68. As discussed above, the pre-existing common law tests remain relevant in situations other than will-making even where the MCA test currently applies. The common law informs the assessment of capacity by outlining the factors relevant to particular decisions or acts. In the law of wills, those factors are set out in Banks v Goodfellow and whatever the test, the underlying factors relevant to testamentary capacity will not be fundamentally different. Consequently, if the MCA test is adopted, the elements specific to testamentary capacity, identified by Banks v Goodfellow and developed in centuries of case law, should be set out in an MCA Code of Practice.

    
    

69. Adopting the MCA test alongside a Code of Practice therefore enables us to keep the benefit of the meaning of testamentary capacity provided by the Banks v Goodfellow test, whilst removing the conflicts with the MCA and the jurisdiction of the Court of Protection. It is the only option for reform that enables us to do so.

    
    

70. Furthermore, creating a Code of Practice that draws on the Banks v Goodfellow test would be an opportunity to resolve or avoid several of the technical issues that have beset the common law test. For example, the issue of whether the Banks v Goodfellow test comprises three or four limbs would become unnecessary to resolve if the MCA test were adopted. The MCA test clearly specifies a broad approach in which the effect of delusions would be considered with respect to all aspects of understanding (the claims of others), rather than just one.

    
    

71. Further, in the MCA, capacity is clearly framed as a person’s being able to make a decision in relation to a matter. Any suggestion from the language of Banks v Goodfellow that, to have testamentary capacity, a person must have actually understood the will in question would fall away.

    
    

72. We consider the technical issues further in the context of our alternative proposal – placing an amended version of the test in Banks v Goodfellow on a statutory footing – but note that the virtues of that proposal mirror some of the virtues of adopting the MCA.

    
    

73. In our preliminary discussions, some stakeholders expressed support for the idea of adopting the MCA test and incorporating elements of Banks v Goodfellow into the MCA Code of Practice. Other stakeholders did not, preferring retention of the Banks v Goodfellow test. However, some stakeholders who favoured retaining the Banks v Goodfellow test were more comfortable with the adoption of the MCA test if the specific elements of capacity to make a will from Banks v Goodfellow were provided for in the MCA Code of Practice.

    
    

    
    

    Placing Banks v Goodfellow on a statutory footing

74. While our preferred option for reform is to adopt the MCA as the test for testamentary capacity, we recognise that some stakeholders might still favour the retention of the Banks v Goodfellow test. Therefore, we would like to hear consultees’ views on the alternative approach of placing Banks v Goodfellow on a statutory footing. We envisage that such an approach would go beyond a “codification”, which would simply seek to crystallize the current test in statutory form. A statutory form of the test would incorporate reform.

    
    

75. Although we regard such a statutory test as an alternative to our preferred proposal, we recognise that, like the adoption of the MCA, this approach would have a number of advantages over the current common law test.

    
    

76. First, placing the Banks test on a statutory footing enables the test for capacity to be recast in simple, modern terms, and in terms more in line with current psychiatric thinking.

    
    

77. Secondly, this approach would also provide an opportunity to provide that disorders of the mind and delusions are only some of the possible causes of incapacity. Such a statutory test would meet the criticism that the test does not reflect the range of facts that are now understood as being capable of affecting a person’s testamentary capacity.

    
    

78. Thirdly, statutory reform of the test could conclusively determine whether the test has three or four limbs. The answer to this question is not clear from the case law and it is unsurprising to find a diversity of views on the interpretation of an unclear turn of phrase in a case that is now 150 years old.94 However, it is useful to distinguish between interpreting what was said in Banks v Goodfellow, from the question whether, as a matter of policy, it is preferable to treat the test as requiring three or four limbs. For the purpose of creating a statutory test, we do not consider it necessary to decide what was in fact intended in Banks v Goodfellow.

    
    

    
    

    
    

    94 See para 2.37 above.

79. The crucial policy question is whether a testator’s delusions are relevant only to the testator’s understanding of the claims on him or her (the three limb interpretation), or are relevant to his or her decision making more generally (the four limb interpretation).95

    
    

80. As a matter of policy, we can see no sound reason for confining the relevance of delusions to one aspect of the preparation of the will. Therefore, we provisionally consider that when placing Banks v Goodfellow on a statutory footing the four limb interpretation should be adopted.

    
    

81. Fourthly, a statutory test would provide an opportunity to clarify that the essential test is of the testator’s ability to understand the will, not whether he or she actually understood the will. While the courts have interpreted Banks v Goodfellow to that effect, the language used in the judgment is arguably ambiguous on its face as regards that point.96 Placing the test on a statutory footing would bring the explicit drafting of the rule into line with its interpretation.

    
    

82. Finally, this approach to the test would make the law more accessible. Accessibility is particularly important in the context of wills, given that many people write their own wills without the benefit of advice from a solicitor.

    
    

83. We note that despite concerns about the accessibility and clarity of the common law test, the British Columbia Law Institute did not recommended a statutory version of the Banks v Goodfellow test in its recent review. Rather, in its view, the test was better left to the common law in order to protect the test’s flexibility, which allows it to respond to “emerging trends and new fact patterns”.97

    
    

84. The flexibility supplied by the common law is an undeniable advantage. There is a risk that if the test were set out in statute in modern terms, those terms would over time become outdated, reflect a disproven approach to understanding mental capacity, or fail to address emerging medical issues affecting capacity. We have not, however, been persuaded that the test of testamentary capacity is better left to the common law. Although we regard the adoption of the MCA test as a preferable avenue of reform, we consider that placing the test on a statutory footing would provide a welcome opportunity to clarify and modernise key aspects of the common law test.

    
    

85. A number of stakeholders supported placing the Banks v Goodfellow test on a statutory footing using modern language and reflecting current medical knowledge. We note, however, that this view was not universally shared.

    
    

    
    

    
    

    95 See para 2.37 above.

    96 Hoff v Atherton [2004] EWCA Civ 1554, [2005] WTLR 99 at [34] per Peter Gibson LJ.

    97 British Columbia Law Institute, Report on Common-Law Tests of Capacity (BCLI Report no 73, 2013) p 43.

    
    

    
    

    
    

    A statutory presumption of capacity

86. If the MCA test were to be applied to testamentary capacity, it would import a presumption of capacity under section 1(2) of the MCA. If reform were to take the form of placing Banks v Goodfellow on a statutory footing, a presumption would not automatically arise. Therefore, it is necessary to consider the value of a presumption of capacity and whether there is a case for introducing the presumption independently of applying the MCA to the law of wills.

    
    

87. Context is crucial. Much has been written about the “shifting burden of proof” in litigation over capacity in the law of wills.98 However, at its core, the necessary analysis is simple. The question is whether the testator had capacity to execute the impugned will. The answer must be either “yes” or “no”. The test to be applied is currently set out in Banks v Goodfellow. The standard of proof is the balance of probabilities.

    
    

88. The question is then: what does a presumption of capacity add to the analysis? In our view, the presumption of capacity draws attention to the functional nature of the capacity analysis. Since it would be presumed that every testator had capacity at the time the will was executed, the presumption would make clear that a person’s medical status, diagnosis or condition is not determinative of capacity. No disability or impairment is, by itself, proof that the testator lacks capacity. Consequently, the presumption channels the analysis towards the effects of any impairment on the mental state of the testator at

    
    

    
    

    98 See R F D Barlow, R A Wallington, S L Meadway, J A D MacDougald, Williams on Wills (10th ed 2014) para

    4.13 and eg Schrader v Schrader [2013] EWHC 455 (Ch), [2013] WTLR 701 at [79].

    the time the will was executed. We note that the British Columbia Law Institute recently recommended a statutory presumption of capacity on the basis that the presumption might combat stereotypes about the capacity of persons with disabilities.99

    
    

    
    

    THE RULE IN PARKER V FELGATE

    
    

89. As explained above,100 capacity is decision-specific and assessed at the time that a decision is made. In the context of a will, the time that the decision is made is when the will is executed. Accordingly, the general rule is that a testator must have testamentary capacity when the will is executed.101 Incapacity after the will is executed does not make the will invalid; similarly, later capacity does not make an earlier will valid if the testator did not have capacity at that time.102 As a result, it is possible for an individual with fluctuating capacity to make a will so long as that person has capacity at the time when the will is made.

    
    

90. In some circumstances, however, testamentary capacity is not required when the will is executed. This exception to the general rule is known as the rule in Parker v Felgate.103 This rule was recently reaffirmed in Perrins v Holland, and set out as follows by Lord Justice Moore-Bick:

    
    

    Where the testator loses some of his faculties between giving instructions and executing the will, however, the position is different. One must then ask (i) whether at the time he gave the instructions he had the ability to understand and give proper consideration to the various matters which are called for, that is, whether he had testamentary capacity, (ii) whether the document gives effect to his instructions, (iii) whether those instructions continued to reflect his intentions and (iv) whether at the time he executed the will he knew what he was doing and thus had sufficient mental capacity to carry out the juristic act which that involves. If all those questions can be answered in the affirmative, one can be satisfied that the will accurately reflects the

    
    

    
    

    99 British Columbia Law Institute, Report on Common-Law Tests of Capacity (BCLI Report no 73, 2013) pp 43 to 46.

    100 See para 2.16 above.

    101 Some authorities also state that it is needed when instructions for a will are given: Re Watson (probate) [2008] EWHC 2582 (Ch) at [81], Hansen v Barker-Benfield [2006] EWHC 1119 (Ch), [2006] WTLR 1141 at [42]. Practically speaking, practitioners will wish to check as to the client’s capacity at the time instructions are given.

    102 Arthur v Bokenham (1708) 11 Mod Rep 148 at 157.

    103 (1883) 8 PD 171.

    deceased’s intentions formed at a time when he was capable of making fully informed decisions.104

    
    

91. There are concerns that the rule in Parker v Felgate105 is unfair or unprincipled. Penelope Reed QC is of the view that the rule deprives the testator of a basic right to check at the point that the will is executed that it carries out his or her instructions, and that it is not in line with the requirement that the testator know and approve of the contents of the will.106 She argues that the principle would have been more useful in the past, when there was no provision for statutory wills and understanding of dementia was limited. Whilst acknowledging the important principle of testamentary autonomy, Penelope Reed cautions that “it is hard, if not impossible for the Court to be really sure that the Will executed by a testator who lacks testamentary capacity reflects his wishes”. Penelope Reed has also questioned the support in case law for the principle, which has been applied only a handful of times.107 Professor Roger Kerridge is of the view that the rule should only be applied in “…the most exceptional circumstances…”.108

    
    

92. We note, however, that the principle has been endorsed by the Court of Appeal in Perrins v Holland. There, the Court of Appeal held that it was not open to them to find that Parker v Felgate had been wrongly decided and that, in any event, this was not their view.109 The Chancellor, in this case, pointed to the rationale of the rule being found in the favouring by the law of testamentary freedom, the preference of the court for upholding transactions and “….the pragmatic recognition in that context that the testator has no further opportunity to give expression to his wishes.”110 The rule was also considered by the Privy Council in the much earlier case of Perera v Perera,111 an authority described in Perrins as “…strong persuasive authority for upholding the decision in Parker v Felgate…” and in which the rule in Parker v Felgate was described as “…good law and good sense…”.112

    
    

93. The Chancellor’s comments in Perrins v Holland have been echoed by some stakeholders who see the rule in Parker v Felgate as useful, and practically necessary in circumstances where the testator loses capacity between giving instructions for the will and executing the will, a problem that may increasingly arise in an aging population.113 Some stakeholders have also given us examples in which the rule has been useful in cases where the testator has given consistent instructions for a will over the course of several years, or where the testator loses capacity quickly.

    
    

    
    

    104 Perrins v Holland [2010] EWCA Civ 1398, (2010) 154(47) SJLB 30 at [55].

    105 (1883) 8 PD 171.

    106 For a discussion of the requirement of knowledge and approval, see Chapter 7 below.

    107 P Reed, “Capacity and want of knowledge and approval”, in B Häcker and C Mitchell (eds) Current Issues in Succession Law (2016) para 2, pp 177 to 179 .

    108 R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) p 73.

    109 [2010] EWCA Civ 840, [2011] CH 270, by the Chancellor at [23] and Moore-Bick LJ at [68].

    110 [2010] EWCA Civ 840, [2011] CH 270, by the Chancellor at [23].

    111 [1901] AC 534.

    112 Above, at 362.

    113 M Frost, S Lawson and R Jacoby, Testamentary capacity (1st ed 2014) para 3.13.

94. Given the appellate authority for the rule in Parker v Felgate, and its practical benefits, we take the view that the arguments for the retention of the rule outweigh those for its abolition.

    
    

95. We have provisionally proposed that the MCA should be adopted as the test for testamentary capacity. As an alternative, if our proposal is not supported, we have suggested that Banks v Goodfellow be placed on a statutory footing. On either approach, the question arises whether Parker v Felgate should be retained. However, stakeholders have pointed out to us that adopting the MCA test gives rise to a particular problem. The MCA requires that a capacity assessment be made at the particular time that a decision is made and in a wills context that would seem to be the moment of execution. Consequently, the rule in Parker v Felgate is arguably inconsistent with the MCA.114 Nevertheless, we think that it would be possible, should the MCA test for capacity be adopted for testamentary capacity, to enact the rule in Parker v Felgate as a qualification to that test.

    
    

    
    

    ASSESSMENT OF TESTAMENTARY CAPACITY: THE GOLDEN RULE

    
    

96. The previous parts of this chapter focussed on what the test for testamentary capacity should be. In this part of the chapter, we consider how testamentary capacity should be assessed. Two fundamental questions arise:

    
    

    1. In what circumstances is it necessary for a testator’s capacity to be assessed? and

       
       

    2. Who should carry out that assessment?

       
       

97. Under the current law, both of these questions are addressed by what is known as the “golden rule”. The golden rule was explained by Mr Justice Templeman in Re Simpson.115

    
    

    In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear and however difficult or tactless it may be to suggest that precautions may be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and

    
    

    
    

    114 See P Reed, “Capacity and want of knowledge and approval” in B Häcker and C Mitchell (eds) Current Issues in Succession Law (2016) p 174.

    115 (1977) 121 SJ 224. The idea has its origins in the earlier case of Kenward v Adams Times, November 29, 1975 (Ch D).

    understanding of the testator, and records and preserves his examination and finding.116

    
    

98. A failure to follow the golden rule does not necessarily mean that a will is invalid. Conversely, the fact that the golden rule has been followed does not guarantee the validity of the will if the testator’s capacity is subsequently called into question. The rule is considered to be one of best practice rather than a rule of law.117

    
    

99. While the golden rule is simple, we consider that the answers it provides to the fundamental questions identified are inadequate. It lacks the nuance necessary to recognise the modern understanding of mental capacity and to deal with the diverse range of situations in which questions about capacity might arise.

    
    

100. The circumstances prescribed by the golden rule in which a further assessment of capacity should be obtained do not reflect modern practice. For example, it assumes that capacity is best assessed by a lawyer or a doctor. In practice, social workers or mental health nurses may be best placed to provide an opinion on testamentary capacity. Further, stakeholders have told us that those well placed to assess capacity may be those skilled in communicating with people who have particular disabilities or lifelong conditions such as deafblindness. Requiring an assessment by a doctor may be both inadequate to determine capacity and inappropriate insofar as it treats a person’s disability or condition as a medical issue instead of a communication issue. Moreover, the suggestion that capacity should be assessed merely because a testator is “aged” is based on assumptions that belong to another era and may, today, be seen as unjustified discrimination.

     
     

101. We consider that for legislation to be modern, fair and effective it should clearly separate the questions of when capacity should be assessed and by whom. It should also give guidance on how capacity should be assessed. We acknowledge that both of these issues raise matters of professional judgement. Legislation can and should provide guidance, but it cannot be prescriptive or give “the answer” for every set of facts.

     
     

102. Therefore, we provisionally propose that a code of practice should provide guidance on when, by whom and how a testator’s capacity should be assessed. This guidance could be set out in statute or issued as a code of practice under powers granted in a statute. We would favour the latter option given that the first alternative sets the provisions in stone and makes them difficult to amend.

     
     

103. We propose that the code of practice should apply to any person acting in a professional capacity to prepare a will on behalf of a testator, or to assess whether a testator has capacity to make a will. Although aimed at professionals, guidance would also benefit others, including testators who would benefit from greater certainty and uniformity in how their capacity is assessed as well as their family members, carers and beneficiaries.

     
     

     
     

     116 Re Simpson (1977) 121 SJ 224 as cited in M Frost, S Lawson and R Jacoby, Testamentary capacity: law, practice and medicine (1st ed 2015) para 6.13.

     117 Sharp v Adam [2006] EWCA Civ 449, [2006] WTLR 1059; Burns v Burns [2016] EWCA Civ 37.

104. We note that guidance on the current law is provided by a number of professional bodies for their members.118 We acknowledge the value and importance of this professional guidance and we anticipate that professional bodies will continue to provide guidance to their own members to supplement a code of practice.

     
     

105. We have provisionally proposed that the MCA is adopted as the test for testamentary capacity, with specific guidance on testamentary capacity provided in an MCA Code of Practice.119 If that proposal is adopted, then the Code of Practice could also contain guidance on the assessment of capacity.120 Even if that proposal is not adopted, the power to issue guidance could be enacted to replace the golden rule and to complement a statutory version of the law on testamentary capacity.

     
     

106. None of this is to suggest that a will’s validity would be determined based on whether any guidance was followed. Following the guidance would simply provide (often strong) evidence of capacity. We expect that failing to follow the guidance set out in a code of practice would be a factor in any personal liability claim against a professional, albeit not a determinative one. We are not in favour of introducing a statutory duty of care121 and do not envisage any new limitations on the ability of professionals to exclude liability. We have been told that professionals often exclude liability for assessing capacity where instructions for a will are taken over the telephone or the internet.

     
     

107. Having in mind those considerations, we proceed next to outline the other issues that a code of practice should address.

     
     

     In what circumstances should a testator’s capacity be assessed?

108. Practitioners have emphasised to us that the question whether a testator has capacity is one that they ask themselves every time a person gives instructions to make a will. In the majority of cases – perhaps most cases – there will be no question that the testator does have capacity. We believe, however, that guidance in a code of practice can set out a number of indicators or warning signs which highlight the need to consider carefully whether a testator has capacity in certain circumstances. We note that lists of capacity “red flags” have been compiled and could provide a useful source of reference.122

     
     

109. We consider that any mental capacity warning signs specific to will making could draw upon the legal test of testamentary capacity. The guidance might make specific reference to the testator’s ability to understand the effect of a will, the nature or extent of his or her estate, or the claims of others on his or her estate. For example, a testator’s

     
     

     
     

     118 For example, STEP, the Law Society and the British Geriatrics Society.

     119 See para 2.66 above.

     120 The Code of Practice is issued by the Lord Chancellor under section 42 of the Mental Capacity Act 2005 and can be revised.

     121 For an example of a statutory duty of care, see Land Registration etc (Scotland) Act 2012, s 111 under which a duty is imposed on certain persons to “take reasonable care to ensure that the Keeper does not inadvertently make the register inaccurate”.

     122 For example, M Frost, S Lawson and R Jacoby, Testamentary capacity: law, practice and medicine (1st ed 2015) ch 15.

     capacity may need to be assessed if he or she is uncertain of the value of his or her estate or whether he or she has made a will (and if so, who it benefits).

     
     

110. The indicators may also refer to the circumstances in which the will is being made. For example, the need for capacity to be assessed should be considered where the will is being made shortly following a bereavement or after a diagnosis of dementia. Additionally, the testator’s medical history (insofar as it is known by the practitioner) and personal demeanour may also suggest a need to approach the issue of capacity with care.

     
     

111. It is important to emphasise that any warning signs would be intended only to offer guidance and the presence of any particular sign would not necessary require a testator’s capacity to be assessed by an expert. For example, a diagnosis of dementia may act as a trigger for a person to execute a will and those in the early stages of the disease may well have capacity.

     
     

     Who should assess capacity?

112. The question of whether a testator has capacity is a legal one. It would be possible, in theory, for the law to provide that the question be answered solely on the basis of a medical assessment. However, given the diverse circumstances in which capacity issues arise, we consider that approach inappropriate for testamentary capacity. Our starting point is to keep an open mind as to who would be best placed to assess mental capacity.

     
     

113. Case law reveals a diversity of opinion as to whether lawyers or doctors are best placed to assess testamentary capacity. In particular, courts have offered conflicting views of the merits of an assessment of capacity by a solicitor at the time a will is executed, and retrospective medical evidence when a will is challenged.

     
     

114. In Burgess v Hawes,123 the Court of Appeal suggested that the view of an experienced independent solicitor as to capacity will not readily be displaced by expert medical evidence from a doctor who had never met the testator.124 The emphasis in Burgess was on the evidence of those who had seen the testator when she was making the will, particularly given that the solicitor was experienced in seeing elderly clients and drafting wills.125

     
     

115. In contrast, it was noted in Ashkettle v Gwinnett126 that the view of an experienced and independent solicitor will not in every case be sufficient. In that case, the testator had dementia but maintained a sufficient social façade to deceive an “incurious interlocutor” including her solicitor. The facts of that case cast some doubt on the Court of Appeal’s confidence in the ability of those who are not trained to do so to detect mental incapacity.

     
     

     
     

     123 [2013] EWCA Civ 94, [2013] WTLR 453.

     124 A solicitor is also not required to obtain medical evidence in every case where a person entering into a contract is elderly: Thorpe v Fellowes Solicitors LLP [2011] EWHC 61 (QB), (2011) 118 BMLR 122.

     125 See also Greaves v Stolkin [2013] EWHC 1140 (Ch), [2013] WTLR 1793.

     126 [2013] EWHC 2125 (Ch), [2013] WTLR 1331.

116. Anecdotal evidence from stakeholders suggests doctors are often uncomfortable or unwilling to confirm a testator’s capacity. Doctors might not see their job as extending to assisting lawyers in the creation of wills; especially as such assistance is not covered by the NHS and might expose them to legal claims.127 Moreover, in the modern-day NHS, it is less common for the testator to have seen one GP over a long period of time.128 Stakeholders have argued that it will be difficult for doctors to ascertain whether a testator has capacity from a short meeting without full knowledge of a patient’s history, and therefore any such report will not be adequate to determine whether a testator has capacity.

     
     

117. Stakeholders’ comments on the difficulties of an assessment being provided by a GP in a short meeting reveals an underlying difficulty with the current law. The golden rule suggests that where a lawyer has cause to doubt a testator’s capacity, then a medical opinion should be obtained. This reliance on an assessment by a lawyer or a doctor suggests that a person’s professional status is the best indication of an ability to assess capacity. In fact, experience in determining testamentary capacity and the history of a person’s professional relationship with the testator may be better markers of an ability to assess the testator’s capacity.

     
     

118. Where a testator’s capacity is in question, a code of practice would therefore encourage a lawyer to consider who is best placed to assess the testator’s capacity and seek an opinion accordingly. An experienced lawyer may be confident of being able to assess capacity him or herself. Someone less experienced or in different circumstances (for example, where there is an obvious question about the testator’s capacity) might obtain an assessment from another professional.

     
     

119. A code of practice could also provide guidance on how best to decide who might assess the testator’s capacity. For example, the code could provide guidance on when it would be appropriate to rely upon the testator’s GP and when the opinion of another medical professional should be obtained. The code could also explain circumstances in which the most effective assessor might be a social worker, a mental health nurse or a professional able to communicate effectively with the testator.

     
     

     Guidance on how capacity should be assessed

120. Finally, a code of practice should set out in clear terms how a testator’s capacity should be assessed; that is, how the mental capacity test is to be applied in practice. The code is an opportunity to explain the capacity test in more detail than is possible in primary legislation (be it the MCA or a statutory version of Banks v Goodfellow) and, drawing on the operative test, guidance could be provided as to the sort of questions that the assessor should ask a testator. The code might also encourage people assessing capacity to comment on the testator’s ability to meet the capacity test and to record those comments. A clear guide to assessing capacity would leave less room for disputes to arise and reduce the need for retrospective assessments of capacity.

     
     

     
     

     127 S Taube “All that glitters” [2014] 114 Private Client Section 22.

     128 S Taube “All that glitters” [2014] 114 Private Client Section 22.

     
     

     
     

     
     

     
     

     SUPPLEMENTARY APPROACHES

     
     

121. A code of practice is not the only way to address the shortcomings of the golden rule. Several stakeholders have suggested reforms that would bolster the initial assessment of capacity in ways that do not directly address the questions of who should assess capacity in difficult cases and when further help should be sought. We consider two such suggestions below. We note that, even if they are not directly aimed at curing defects in the golden rule, the ability of the reforms to meet those problems should be an important consideration in assessing them.

     
     

     A certificate of capacity

122. In light of the current problems with capacity assessments, stakeholders have suggested that a scheme could be enacted allowing testators to have their capacity certified by a third party. A certification regime could plausibly mirror the law that governs Lasting Powers of Attorney (LPAs).

     
     

123. In order to make an LPA, the person making the LPA (the donor), must obtain a certificate corroborating his or her capacity. Specifically, the certificate must provide that, at the time the donor executes the agreement –

     1. the donor understands the purpose of the instrument and the scope of the authority conferred under it,

        
        

     2. no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney, and

        
        

     3. there is nothing else which would prevent a lasting power of attorney from being created by the instrument.129

     
     

124. The certificate must be provided by someone meeting the qualifications prescribed in regulation: he or she must have known the donor for at least two years or, on account of his or her professional skills or expertise, must reasonably consider that he or she is competent to make the judgement necessary to certify the matters set out in the certificate.

     
     

125. The regulations provide examples of persons meeting the second requirement: registered health care professionals; barristers and solicitors qualified to practise in the UK;130 registered social workers; or independent mental capacity advocates.131

     
     

126. The argument from stakeholders is that a similar scheme could be enacted to certify testamentary capacity. We see the force of that argument, particularly the potential of certification to avoid expensive and acrimonious litigation. However, there are several difficulties with transplanting the LPA certification regime into the law of wills.

     
     

127. First, a professional asked to certify an LPA is in a similar position to a professional taking instructions for a will. The person must make an initial assessment and then decide whether to seek further assistance.132 The mere existence of the scheme does not tell the certificate provider what to do where he or she is uncertain about a client’s capacity. While a certification scheme could solve those problems by limiting the class of potential certification providers (say, to psychiatrists or “accredited people”) we consider that any such limitation would be undesirable.133 In short, transplanting an LPA-like system into the law of wills would not solve the problems surrounding the golden rule.

     
     

128. Secondly, a compulsory system of certification would place a disproportionate burden on testators, because it would make the process of making a will more complicated, expensive and less efficient. Even if the system were voluntary, there is a risk that it would become a de facto rule because testators might come to think that a certificate

     
     

     
     

     129 Mental Capacity Act 2005, sch 1, para 2 (1)(e).

     130 The Law Society discusses the responsibilities of a certificate provider in Law Society, Practice Note: Lasting Powers of Attorney (8 December 2011) para 7.1.

     131 Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (SI 2007 No 1253), reg 8.

     132 The Law Society recommends that where the person certifying the LPA is in doubt about whether the donor has mental capacity to make a power of attorney, that person should consider getting a medical opinion. Law Society, Lasting powers of attorney (Practice Note), https://www.lawsociety.org.uk/support- services/advice/practice-notes/lasting-powers-of-attorney/.

     133 See para 2.112 above.

     of capacity is vital to their will being upheld. Certification may operate, unintentionally, as a barrier to will-making

     
     

129. Thirdly, it is not clear what value a certificate of capacity would add in practice. As the law stands, professionals instructed to draft wills are required to ensure that the testator has capacity. The professional impliedly endorses the testator’s capacity by drawing up the will. Furthermore, testators who wish to insulate their wills against challenge may opt to be assessed by medical professionals or specialist mental capacity assessors. Where testators want further evidence of their capacity, it is already open to them to obtain it.

     
     

130. Fourthly, we are not convinced that there would be the political will, or resources, to adopt a certification system for wills. Without a system of LPAs there would be an increased burden on the Court of Protection which would have to deal with making decisions on behalf of the incapacitated person. No such justification exists in the law of wills.

     
     

131. For these reasons, we have taken the view that the potential downsides to a certification scheme outweigh its potential benefits.

     
     

     
     

     An accreditation scheme

132. Stakeholders have also raised the possibility of introducing an accreditation scheme. An accreditation scheme would deal with the problems raised by the golden rule by directing testators and professionals towards people competent to undertake capacity assessments. Accreditation would mark out who could best assess capacity in difficult cases. Accreditation would also be persuasive in litigation should capacity be contested after the death of the testator. However, accreditation would not solve the problem of when capacity should be assessed by someone other than the professional drafting the will.

     
     

133. There are two broad types of accreditation scheme. First, a scheme might be operated by a regulatory organisation created by statute. This could be achieved by mirroring the manner in which the Legal Services Act 2007 created the Solicitors Regulation Authority. Secondly, a scheme might be operated by a private organisation who would accredit lawyers, medical professionals and social workers to assess testamentary capacity. The status of that accreditation would depend on the standing of the organisation.

     
     

134. The first option is not practicable. There is no reason for a regulatory body governing mental capacity assessors to govern only those assessors working in the domain of wills. Consequently, a scheme would have to be considered broadly and that type of broad consideration is beyond the scope of the present project. Furthermore, creating

     a statutory body would be disproportionate: the solution risks using a sledgehammer to crack a nut.

     
     

135. The second option is more workable. For example, we have been told that the Practice Committee of the Society of Trust and Estate Practitioners are considering introducing a qualification standard and creating a list of doctors competent and willing to perform capacity assessments in order to provide a reference source to solicitors preparing wills. We commend those efforts and recognise the value of private accreditation schemes.

Chapter 3: Statutory wills

1. As we have discussed in the chapter on capacity, the court has the ability to make certain decisions, or take certain actions, for those who lack capacity to do so. We noted in that chapter that one of the actions that a court can take is to make a will for a person who lacks capacity – a “statutory will”. It has been possible to make a statutory will for a person since 19701 but the legislative basis for such a will is now to be found in the Mental Capacity Act 2005 (“the MCA”). There are around 400 such applications each year.2

   
   

   THE CURRENT LAW

   
   

2. Under section 16 of the MCA, the Court of Protection has the power to make a decision on behalf of a person in relation to that person’s property and affairs where he or she lacks capacity to do so him or herself, as assessed under the provisions of the Act. The court must make that decision in accordance with that person’s best interests.3 Specific provision for statutory wills is made in section 18 where it is provided that the powers in section 16 extend to “the execution for P of a will”.4 This jurisdiction is expressly reserved only to the court, and not to deputies.5

   
   

3. As our discussion in this chapter is confined to statutory wills, we refer to the person on whose behalf the Court of Protection intervenes – P in the legislation – as the testator.

   
   

4. Where the court makes an order for a person to execute a will on behalf of the testator, certain formalities must be complied with. The will must:

   
   

   1. state that it is signed by the testator acting by the authorised person

      
      

   2. be signed by the authorised person with the name of the testator and his own name, in the presence of two or more witnesses present at the same time

      
      

   3. be attested and subscribed by those witnesses in the presence of the authorised person, and

      
      

   4. be sealed with the official seal of the court.6

      
      

5. A statutory will can make any provision that the testator could have made if he or she had capacity, and the effect of the will is the same as if the testator had made a valid

   
   

   
   

   
   

   1 The Administration of Justice Act 1969 introduced this power into the Mental Health Act 1959 as s 103(1)(dd), which came into force on 1 January 1970. This became Mental Health Act 1983, s 96(1)(e). See D Lush “The evolution of the statutory will jurisdiction” [2014] Elder Law Journal 173.

   2 G Ashton (ed), Court of Protection Practice 2016 (2016) para 5.17, 278.

   3 Mental Capacity Act, ss 1(5) and 4.

   4 Mental Capacity Act 2005, s 18(1)(i).

   5 Mental Capacity Act 2005, s 20(3)(b).

   6 Mental Capacity Act 2005, sch 2, para 3.

   will under the Wills Act 1837.7 It is not possible for a statutory will to be made for a person under 18.8 This limitation reflects the general requirement in the 1837 Act that a person must be 18 or older to execute a will.

   
   

6. The Court of Protection Practice 2016 sets out the kinds of situations in which an application for a statutory will is likely to be made, providing examples of cases in each situation:

   
   

   1. where the testator’s circumstances have altered in a major way (for example, where a previous will is revoked by marriage);9

      
      

   2. where property left in a will adeems;10

      
      

   3. where there is a change in relation to beneficiaries under a previous will or potential beneficiaries, including the testator’s relationship with them;11

      
      

   4. where there are doubts as to the validity of a previous will;12 and

      
      

   5. where no provision would be made on the person’s death, either under an existing will, or (where there is none), the intestacy rules, for a person or organisation for whom the testator might be expected to provide if he or she had capacity.13

      
      

7. As well as allowing a will to be made for a person who would otherwise not be able to execute a will, stakeholders have told us of the benefits of a statutory will in bringing to the surface and resolving any potential succession disputes before the testator’s death.

   
   

   The exercise of the court’s discretion

8. Once the Court of Protection has ascertained that a testator lacks capacity to make a will, it has the discretion to make a statutory will for that individual. The question then becomes what considerations should govern that discretion.

   
   

9. Under the MCA, the court’s discretion is dictated by determining the testator’s best interests. The factors to be taken into account, when deciding what course of action is in a person’s best interests, are specified in section 4 of the MCA. That section requires “all the relevant circumstances” to be taken into account and sets out further

   
   

   
   

   7 Mental Capacity Act 2005, sch 3, para 2 and 4. The formalities required by Wills Act 1837, s 9 are disapplied by Mental Capacity Act 2005, sch 3, para 4(2)(a).

   8 Mental Capacity Act 2005, s 18(2).

   9 As in Re Davey (Deceased) [1981] 1 WLR 164.

   10 As in Re D (J) [1982] Ch 237.

   11 As in Re HMF [1976] Ch 33. In HMF, the testator had expressed a wish to make a new will benefiting two nephews. In other cases, a beneficiary might have died or been found to have committed financial abuse against the testator.

   12 As in Re D [2010] EWHC 2159 (Ch), [2012] Ch 57.

   13 As in Re C (Spinster and Mental Patient) [1991] 3 All ER 866. For a complete list, see Court of Protection Practice 2016 (2016) para 5.17. Note, however, that the test as to whether a statutory will should be made changed from a “substituted judgment” to a “best interests” approach in the Mental Capacity Act 2005, so the cases predating 2007 must be viewed in this context.

   considerations for the decision-maker. In our Report on Mental Capacity and Deprivation of Liberty we explain that the decision maker:

   
   

   1. must not make their determination merely on the basis of the age or the appearance of the person, or on the basis of unjustified assumptions from the person’s condition or behaviour (known as the principle of “equal consideration”);

      
      

   2. must consider whether the patient is likely to regain capacity and, if so, when that is likely to occur;

      
      

   3. must encourage the person to participate as fully as possible in the decision before making it for the person;

      
      

   4. in making best interests decisions in relation to life-sustaining treatment must not be motivated by a desire to bring about the person’s death;

      
      

   5. must consider the person’s past and present wishes and feelings (including written statements), the person’s beliefs and values, and any other values that the person would be likely to consider if they were able (thus inserting an element of “substituted judgment”); and

      
      

   6. must consult a number of people including carers, holders of lasting powers of attorney, deputies and anyone else named by the person.14

      
      

      It has been suggested that, while there is no hierarchy in the factors set out in section 4 of the MCA significant weight should be given to the wishes and feelings of the person on whose behalf the decision is being made.15 In our Report on Mental Capacity and Deprivation of Liberty, however, we recommend that the MCA should be amended so that the decision-maker must ascertain, so far as is reasonably practicable, the factors set out at (5) in the list above and, in making the determination, must give particular weight to any wishes or feelings ascertained.16

      
      

      Procedure

10. No permission is required for a person to make an application for a statutory will.17 A 2015 amendment to the Court of Protection Rules made provision for the court to consider how the testator should be enabled to participate in proceedings. In each case, the court must now consider whether it should make one of several specified directions:

    
    

    1. joining the testator as a party

       
       

       
       

       14 Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, para 14.3.

       15 See the judgment of Lady Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591, at [45], and Re BM [2014] EWCOP B20, at [58].

       16 Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, para 14.21.

       17 Mental Capacity Act 2005, s 50 provides that, while permission is generally required for applications to the Court of Protection, permission is not required by, among others, P, a deputy, or a person named in an existing order of the court, if the application relates to the order. Court of Protection Rules 2007, r 51 provides further exemptions from the court’s permission being required for an application, one of which is where the application concerns P’s property and affairs (r 51(b)(i)) – which would include an application for a statutory will.

    2. appointing an accredited legal representative to represent the testator

       
       

    3. appointing a representative to provide the court with information on matters relating to the testator’s wishes and feelings, the beliefs and values that would influence the testator’s decision if he or she had capacity and other factors that he or she would be likely to consider if he or she were able to do so

       
       

    4. giving the testator the opportunity to address the judge determining the application

       
       

    5. that the testator’s interests and position can properly be secured without making one of the above directions.18

       
       

11. While it is the Court of Protection that makes a statutory will, with the draft will being supplied by the applicant for the statutory will,19 the Office of the Official Solicitor may be involved in the work leading up to the making of the will. Unless the application is very simple (such as changing the name of an executor) the court will usually join the testator as a party.20 Where the testator is joined as a party, the court will usually invite the Official Solicitor (or some other person) to act as his or her litigation friend.21 The Official Solicitor will also act as the testator’s solicitor if appointed.

    
    

12. The Official Solicitor will not automatically accept the appointment, however; whether they do so depends on a variety of factors. The proportionality of the Official Solicitor acting is central to the decision, given the costs that will then be incurred by the testator. These costs may not be justified where an estate is of a modest value.

    
    

13. The Official Solicitor will gather evidence and views as to the most appropriate provisions for the statutory will, and conduct research into who would otherwise benefit (which will require research into the testator’s genealogy where he or she is intestate).

    
    

14. The Official Solicitor told us that they consider how to involve the testator in the process of making the statutory will; this will usually start with a capacity assessment in which the extent to which the testator can express his or her own wishes is gauged. When proportionate to do so, the Official Solicitor will instruct a Court of Protection visitor as an agent to visit the testator to discuss the implications of the proposed will.22 The visitor will report back and the Official Solicitor will decide whether further assessment is necessary. They will also initially write to the testator’s carer, care home or social worker for information. When the Official Solicitor has sufficient information, the aim is usually to direct proceedings to reach an outcome which reflects the testator’s wishes and feelings, with the agreement of potential beneficiaries of the will, or those who would benefit under the intestacy rules (if relevant).

    
    

    
    

    18 Court of Protection Rules 2007 (SI 2007/1744), r 3A

    19 Court of Protection Practice Direction 9F, paragraph 6 provides that where an application is made for the execution of a statutory will, a copy of the draft will must be provided.

    20 G Ashton (ed), Mental Capacity: Law and Practice (3rd ed 2015) p 288, fn 43.

    21 Court of Protection, Practice Direction 9F, para 10.

    22 Visitors are “appointed to report to the Court of Protection on how attorneys or deputies are carrying out their duties”. MCA Code of Practice (2007) p 283.

15. There will be 14 days after an application has been issued for the applicant to serve the respondents to the application, and to notify certain other people of it and 14 days after that for those persons to file an acknowledgement of service or notification.23 The respondents to a statutory will application will be beneficiaries under an existing or proposed will who are likely to be materially or adversely affected by the application, or, where there is no existing will, any prospective beneficiary under intestacy.24 The testator must be notified of the application25 and it may be appropriate for other people also to be notified, for example members of the testator’s close family (where they would not otherwise be respondents to the application).26 The Court will usually set a reporting date 12 to 14 weeks after the application is made. The Official Solicitor has told us that, in the majority of cases, the matter is dealt with by agreement within 12 weeks but that, where the statutory will application is contested, the proceedings can take between six months and two years.

    
    

    The UN Disability Convention

16. The CRPD, the full title of which is the UN Convention on the Rights of Persons with Disabilities,27 is particularly relevant to the issue of statutory wills.28 On the UN Convention webpage, the CRPD is described in this way:

    
    

    The Convention is intended as a human rights instrument with an explicit, social development dimension. It adopts a broad categorization of persons with disabilities and reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms. It clarifies and qualifies how all categories of rights apply to persons with disabilities and identifies areas where adaptations have to be made for persons with disabilities to effectively exercise their rights and areas where their rights have been violated, and where protection of rights must be reinforced.29

    
    

17. The CRPD has been ratified by the United Kingdom but is not incorporated into national law; (non)compliance is therefore a matter of political rather than legal consequences.30 It is relevant because it provides a measure against which the statutory wills regime can be assessed in relation to enabling and protecting those with disabilities.

    
    

18. Article 12 of the CRPD provides for the recognition that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. The Committee on the Rights of Persons with Disabilities provides guidance on the interpretation and implementation of the articles of the CRPD; the states who are parties to the CRPD

    
    

    
    

    
    

    23 Court of Protection Rules 2007, r 42(1), 46(3), 66(1), 70(1) and 72(2).

    24 Practice Direction 9F – Applications relating to statutory wills, codicils, settlements and other dealings with P’s property (supplementing Part 9 of the Court of Protection Rules 2007).

    25 Court of Protection Rules 2007, r 42

    26 Court of Protection Rules 2007, r 70 and see Practice Direction 9B – Notification of other persons that an application form has been issued (supplementing Part 9 of the Court of Protection Rules 2007).

    27 Adopted on 13 December 2006 (A/RES/61/106).

    28 And also supported wills – see Chapter 4.

    29 See https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with- disabilities.html (last visited 14 June 2017).

    30 R (on the application of SG) v Secretary of State for Work and Pensions [2015] UKSC; [2015] 1 WLR 1449.

    must have regard to this guidance.31 The Committee’s General Comment Number 1 on Article 12, issued in 2014, states that substituted decision-making should be abolished and replaced with support for persons with disabilities in the exercise of their legal capacity.32 Substituted decision-making is interpreted broadly in this context and under the CRPD the “best interests” approach is classed as substituted decision-making.

    
    

19. The General Comment suggests that “support” for the person to exercise legal agency extends to the situation when a person cannot make his or her own decisions.33 This description incorporates the situations in which a statutory will is made. The Comment also outlines the requirements of support, including that supported decision-making should be available to all, and that all forms of support in the exercise of legal capacity must be based on the person’s will and preferences, not best interests.34

    
    

20. We have noted above amendments to the Court of Protection Rules made in 2015 to make provision for how the testator should be able to participate in proceedings. This support for the testator’s involvement may increase the extent to which the MCA may be considered compatible with the CRPD. Notwithstanding, as the “best interests” approach of the MCA is considered a form of substituted decision-making, there is a conflict between the MCA and Article 12 of the CRPD.

    
    

    PROBLEMS IN LAW AND PRACTICE

    
    

    Critique of the rationale for statutory wills and the operation of best interests

21. As we have explained, the underlying rationale for the making of a statutory will is the testator’s best interests. We are aware of criticisms of this rationale: some commentators have asked whether it is appropriate to use the testator’s best interests as the criterion to judge whether a statutory will should be made, and, if so, what its provisions should be. The argument is that it is difficult to apply a test of best interests to a disposition which only takes place after a testator has died.35

    
    

    
    

    31 The UK is not bound by the Committee’s interpretation of Article 12: see W Martin, “The MCA under scrutiny: meeting the challenge of CRPD compliance” [2015] Elder Law Journal 32; Essex Autonomy Project, “Is the Mental Capacity Act of England and Wales compatible with the UN Convention on the Rights of Persons with Disabilities? If not, what next?” p 12. However, In accordance with Article 31(3)(b) of the Vienna Convention on the Law of Treaties, regard is required for “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”, which includes the opinion of the Committee: see L Series, “Comparing old and new paradigms of legal capacity” [2014] Elder Law Journal 92.

    32 UN Committee on the Rights of Persons with Disabilities, “General Comment No 1: Article 12: Equal Recognition before the Law”, para 7.

    33 UN Committee on the Rights of Persons with Disabilities, “General Comment No 1: Article 12: Equal Recognition before the Law”, paras 3, 7, 9, 14, 15, 17 and 26 to 28. See also Essex Autonomy Project, Three Jurisdictions Report: Towards Compliance with CRPD Art 12 in Capacity/Incapacity legislation across the UK (Position Paper, 2016) s 6.1.

    34 UN Committee on the Rights of Persons with Disabilities, “General Comment No 1: Article 12: Equal Recognition before the Law”, para 29.

    35 R Harding, “The rise of statutory wills and the limits of best interests decision-making in inheritance” (2015) 78(6) Modern Law Review 958.

22. More specifically, it is argued that there is an incoherence in the approach taken by the courts to the making of statutory wills, so that the principle of the best interests of the testator is, in fact, overridden by other (less justifiable) reasons, which are concealed behind the best interests test.36

    
    

23. The testator’s best interests have been interpreted in case law to include the idea that the testator should be remembered for having “done the right thing” by his or her (statutory) will:37

    
    

    For many but not all people it is in their best interests that they be remembered with affection by their family as having done the right thing by their will. This is something which the judge is ‘entitled to take into account’ – is it a relevant consideration – alongside the other factors specified in section 4 [best interests].38

    
    

24. This interpretation has been criticised. In Re G (TJ) it was said to be unclear how a person could be seen as having done the right thing when it was the Court of Protection, rather than the person him or herself, making the will.39 More generally, it has been said that “there is a real danger that best interests defined as ‘doing the right thing’ can be manipulated and transform common courtesy and generosity to others into some form of entitlement to be included in a will that P would not necessarily have made”.40

    
    

25. On the other hand, in Re Jones, it was said:

    
    

    Occasionally, there may be circumstances such as those referred to by the President [an appropriate reward for a person doing something for the testator, or an inducement to a person to do more for the testator] or the avoidance of post-death litigation which justify departing from a person’s clear past and present wishes and beliefs. However, in the ordinary case the Mental Capacity Act is not a vehicle for imposing on people views, wishes and feelings that clearly are contrary to those they held before losing capacity, do not hold now and would not hold if they regained capacity, however right those views may be, and however unworthy P’s views are according to most people’s standards. …The onset of mental incapacity is not an opportunity for moral correction.41

    
    

26. We note the concerns directed at the idea of a statutory will “doing the right thing”. We question, in the light of the explanation in Re Jones, whether it is necessarily used in a manner that is incompatible with the testator’s best interests. The Official Solicitor has also said to us that the concept of doing the right thing will include many possible factors

    
    

    
    

    36 R Harding, “The rise of statutory wills and the limits of best interests decision-making in inheritance” (2015) 78(6) Modern Law Review, 966.

    37 See Re P [2009] EWHC 163 (Ch), [2010] Ch 33, Re M [2009] EWHC 2525 (Fam), [2011] 1 WLR 344, Re D

    (Statutory Will) [2010] EWHC 2159 (Ch), [2012] Ch 57, Re Meek [2014] EWCOP 1, [2014] COPLR 535 and

    Re Jones [2014] EWCOP 59.

    38 Re Jones [2014] EWCOP 59 at [61].

    39 [2010] EWHC 3005 (Fam), [2011] Med LR 89 at [53].

    40 P Hewitt, S Richards and N Stourton, “The Court of Protection, charities and the evolution of best interests” [2012] Elder Law Journal 264.

    41 Re Jones [2014] EWCOP 59 at [64] and [65].

    that the testator would be likely to consider if he or she was able to do so and that undue emphasis is not, in practice, placed on it as a standalone factor.

    
    

27. Rosie Harding argues that statutory wills cases may sometimes operate on the basis of a pragmatic distribution of assets; that is as a result of argument and compromise between the competing members of the testator’s family, rather than being determined by the testator’s best interests.42 It may be, however, that a pragmatic distribution, which avoids any costs associated with post-death litigation, is in the testator’s best interests in the sense that it is unlikely that the testator would wish his or her estate to be depleted by the costs of such litigation, if it can be avoided.

    
    

28. Harding also views as controversial those cases in which statutory wills are made for those who have never previously made a will, both in the case where the testator has never had capacity and, particularly, where the testator once had capacity and so was able to make a will but never did so. She argues that, in the latter situation:

    
    

    It is hard to see a substantive justification for why the default rules of intestate succession should not apply to those who lose testamentary capacity in their lifetime, and who have not expressed their testamentary wishes in a valid will when they had opportunity to do so.43

    
    

29. Harding takes the view that statutory wills should only be made in the situation where they are used to adapt the testator’s testamentary will and preferences to changed financial circumstances, which might otherwise frustrate the testator’s previous intentions.44

    
    

30. We also note that there is a specific exception to the way in which statutory wills “mirror” those executed by a testator in the usual way. It is possible for an English will made in the usual way to deal with immoveable property (land) outside England and Wales.45 However, statute specifically prohibits a statutory will from doing so.46 We understand that the issue does not frequently arise.

    
    

    Procedural concerns

31. Stakeholders have expressed concern with the length of time it can take to obtain a statutory will and with the cost, which may include both the Official Solicitor’s fees, and the fees for solicitors representing other parties (which could include the testator’s

    
    

    
    

    
    

    42 R Harding, “The rise of statutory wills and the limits of best interests decision-making in inheritance” (2015) 78(6) Modern Law Review, 945, 961, discussing the cases of NT v FS [2013] EWHC 684 (COP), [2014] WTLR 867. and Re Meek [2014] EWCOP 1, [2014] COPLR 535.

    43 R Harding, “The rise of statutory wills and the limits of best interests decision-making in inheritance” (2015) 78(6) Modern Law Review 945, 970.

    44 R Harding, “The rise of statutory wills and the limits of best interests decision-making in inheritance” (2015) 78(6) Modern Law Review 945, 970.

    45 In practice, a will may be required in the foreign jurisdiction to deal with immoveable property situated there. Whether this is the case will depend on the law of that jurisdiction.

    46 Mental Capacity Act 2005, sch 2(4). A statutory will can, however, have effect in relation to moveable property where P is domiciled in England and Wales, or where he or she is domiciled elsewhere but the question of his or her testamentary capacity would be determined under the law of England and Wales. The situation for moveable property is therefore similar to that where a testator executes his or her own will.

    attorney or deputy). We have been told that statutory wills usually cost over £5000 in legal fees and can cost multiples of that amount. Stakeholders have also raised the possibility of statutory wills being made other than by the Court of Protection, in order to reduce costs and delay. That said, stakeholders recognised that the current process was robust and protected against undue influence, and that concerns over length and cost of proceedings may arise, at least in part, from resource constraints upon the Official Solicitor.

    
    

32. Stakeholders who act for clients in statutory will applications also expressed concerns that their clients may die part way through the process of obtaining the statutory will, at which point proceedings will cease and no statutory will approved.

    
    

    REFORM

    
    

33. The best interests rationale for the exercise of the court’s discretion to make a statutory will is one that is dictated by the fact that statutory wills are made under the authority of the MCA, which uses such an approach. It does not seem to us to be desirable to remove statutory wills from this framework. Indeed, in the chapter of this paper dealing with capacity we have provisionally proposed that the test of capacity to make a will should be brought within the MCA.47

    
    

34. Our discussion of criticism regarding the testator’s best interests illustrates the range of interests that are involved in statutory will proceedings. Moreover, we note that academic criticism could well inform judicial interpretation of the best interests test and its application to statutory wills.

    
    

35. For those reasons best interests decision-making under the MCA may, in practice, be compliant with the interpretation in the General Comment of Article 12 as requiring support.48 It appears that the Court of Protection is prioritising the testator’s wishes and feelings in the assessments of best interests under the MCA. Taking this into account, and the work of the Official Solicitor to elicit the testator’s views that we have described above, we are not clear that there is a compelling need for reform of the way in which best interests are interpreted in proceedings for a statutory will.

    
    

36. As we discuss above, our report on Mental Capacity and Deprivation of Liberty recommends that section 4(6) of the MCA be amended to require a determination of a person’s best interests to give particular weight to a person’s past and present wishes and feelings.49 If implemented, this reform could help to allay concerns that the testator’s wishes and feelings were not being sufficiently respected in proceedings for statutory wills.

    
    

    
    

    47 Chapter 2.

    48 A Ruck Keene and C Auckland, “More presumptions please? Wishes, feelings and best interests decision- making” [2015] Elder Law Journal 293. See also Essex Autonomy Project, Three Jurisdictions Report: Towards Compliance with CRPD Art 12 in Capacity/Incapacity Legislation across the UK (Position Paper, 2016) s 5.4. However, how practitioners on the ground are assessing best interests may fail to prioritise a person’s wishes and feelings: see House of Lords Select Committee on the Mental Capacity Act: Report of Session 2013-14: Mental Capacity Act 2005: Post-legislative Scrutiny (2014) HL 139.

    49 Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, p 161.

37. We also question the desirability of restricting the court’s jurisdiction to make a statutory will to the situation in which a valid will has previously been executed by the testator. That would necessarily mean that the estate of people who have never had capacity, or who did not execute a will before losing capacity, would be distributed under the intestacy rules. It seems to us, however, that each case is fact specific and that there may be good reasons to make statutory wills in such cases; for example to avoid those who have committed financial abuse against the testator from inheriting under the intestacy rules.

    
    

38. As we have seen the court’s jurisdiction to make a statutory will is also restricted to those cases where the testator is aged 18 or older. We discuss in the chapter on children and succession whether, generally, the age at which a person can make a will should be lowered. We provisionally propose that this age should be reduced to 16 and ask whether it should be possible for a person under the age of 16 to make a will where he or she is found to have the capacity to do so. It would be logical for statutory wills to continue to effectively mirror wills made under the 1837 Act; that is, if there is any reform to the age at which a will can be made then this should also apply to statutory wills.

    
    

    
    

39. With regard to procedural reform, some stakeholders have queried whether there is a way to make statutory wills more quickly and cheaply. Increasing the resources of the Official Solicitor or the Court of Protection is beyond the ambit of law reform and we therefore draw a distinction between improvements dependent on increased resources and those made possible by reforms to the procedure by which statutory wills are made. We also bear in mind that, inevitably, research and evidence gathering by the Official Solicitor takes time. We would be interested to hear whether consultees think that any improvements can be made to the procedure.

    
    

40. With regard to the possibility of the testator dying part way through an application for a statutory will, we note that in the recent review of succession law by the Victorian Law Reform Commission, it was suggested, in relation to the equivalent jurisdiction in Victoria, that it should be possible for an application to be made for a statutory will for a person after his or her death. The Victorian Commission did not favour reform of this kind, suggesting that it “…would create difficulties with overlapping family provision

    jurisdiction.”50 We agree that the same objection would apply in this jurisdiction, given the availability, after the testator’s death, of an application for financial provision from the estate, for certain categories of people, under the Inheritance (Provision for Family and Dependants) Act 1975. In addition, the MCA only applies to living persons, and allowing an application for a statutory will where a person has died would therefore not fit within the legislative framework within which statutory wills are made. We also note that where there are concerns that the testator may die before a hearing date it is possible to ask for the application for a statutory will to be expedited.51

    
    

41. We consider in the next chapter whether there should be a scheme to support people to make a will where, without such support, they would otherwise not have capacity. If such a scheme were to be available that might offer a partial answer to the perceived cost and delay in obtaining a statutory will where the person in question only lacks testamentary capacity because he or she lacks support to make a will (rather than cases where a person would clearly lack capacity, regardless of what support were provided).

50 Victorian Law Reform Commission, Succession Laws Report (2013) p 24.

51 G Ashton (ed), Court of Protection Practice 2016 (2016) para 5.54, p 291.

Chapter 4: Supported will-making

INTRODUCTION

1. In this chapter, we consider the arguments for and against the introduction of a scheme of supported will-making. Such a scheme would be designed to benefit testators who could have capacity to make a will if provided with support to do so, in line with developments in supported decision-making in other legal contexts. It would therefore complement the provision in the Mental Capacity Act 2005 (“MCA”) for making a statutory will for a person who lacks the capacity to do so, which we discussed in the previous chapter.

   
   

2. Underlying this discussion is the question of whether the approach in English and Welsh law to testamentary capacity is compatible with the UN Disability Convention. As we outlined in the previous chapter, Article 12 is concerned with the right of those with disabilities to enjoy legal capacity in the same way as all other people. We described how, at the level of underlying principles, the best interests test contained in the MCA may be more compatible with the UN Disability Convention than might first appear to be the case. However, we take the view that there is more that can be done on a practical level to increase the support available to testators who might otherwise lack capacity to make a will.

   
   

3. Some people lack the mental capacity to make a will no matter how much support they might receive. A supported will-making scheme would not be able to assist such people; for them, a statutory will, provided through an application to the Court of Protection, would remain the appropriate course of action.

   
   

4. In our discussions with stakeholders so far, many have expressed support for a scheme of supported will-making in order to promote autonomy. One stakeholder was in favour of supported will-making as promoting a rights-based approach to testamentary capacity that would ensure people were not denied their right to autonomy. Another stakeholder believed that a scheme of supported will-making would be welcomed by the courts, which have upheld wills in borderline capacity cases based on the importance of testamentary freedom and autonomy.

   
   

5. We envisage that a scheme of supported will-making would fill the gap between wills made by testators who clearly have testamentary capacity and statutory wills made by the Court of Protection on behalf of testators who are determined not to have capacity. It would apply to testators who are capable of understanding what is necessary to make a will, but who need support in order to do so.

   
   

   SUPPORTED WILL-MAKING AND INTERNATIONAL LAW

   
   

6. First, we discuss whether there is any legal requirement for a scheme of supported will- making. We consider the requirements for supported decision-making under the UN Disability Convention. We then examine the current scope for supported decision- making under the common law Banks v Goodfellow test and the MCA, and discuss whether they meet the UN Disability Convention’s requirements.

   The UN Disability Convention

7. Article 12(3) of the UN Disability Convention specifically requires states to take “appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity”. This provision therefore requires that persons with disabilities be supported to have capacity.

   
   

8. The General Comment on Article 12 gives guidance on the interpretation and implementation of Article 12. It explains that Article 12 does not permit the denial of legal capacity based on a person’s disability or an assessment of a person’s decision- making skills, but requires support in the exercise of legal capacity. Substituted decision-making should therefore be replaced by supported decision-making, and when supported decision-making is not possible because the person is unable to make any decision, support should take the form of a decision based on a person’s will and preferences.

   
   

9. We note that what the General Comment refers to as a supported decision-making scheme is a scheme for making decisions where a person is unable to make such decisions on their own. Using the General Comment’s definition of support, such a scheme would therefore include making decisions for a person who, in the language of the MCA, would be said to lack capacity. The General Comment’s use of the term support is therefore both broader than, but encompasses, what we mean by a supported will-making scheme.

   
   

10. The General Comment outlines the requirements for a supported decision-making regime.1 It must:

    
    

    1. be available to all for free or basically for free;

       
       

    2. be based on the person’s will and preference;

       
       

    3. not be limited based on the method of communication the person requires;

       
       

    4. have provision for legal recognition of the supporter;

       
       

    5. not be used to limit the rights of those with disabilities;

       
       

    6. have provision for individuals to refuse support;

       
       

    7. have safeguards to ensure a person’s will and preferences are respected; and

       
       

    8. not be based on mental capacity assessments but rather on “new, non- discriminatory indicators”.2

       
       

       
       

       1 UN Committee on the Rights of Persons with Disabilities, “General Comment No 1: Article 12: Equal Recognition before the Law”, paras 15 and 29.

       2 UN Committee on the Rights of Persons with Disabilities, “General Comment No 1: Article 12: Equal Recognition before the Law” (adopted 11 April 2014) para 29.

11. As we have previously discussed, the guidance in the General Comment is non-binding but regard must be had to it by the states who are parties to the CRPD.3

    
    

    Banks v Goodfellow

12. In our discussions with stakeholders, we have learned that some solicitors already support testators in drafting their wills. One stakeholder, a firm of solicitors, provided us with examples of the type of support it provides.

    
    

13. Where a testator understands the nature of a will and to whom he or she wants to give her estate but struggles with understanding the extent and value of the estate, support can be provided to help him or her determine how to divide the estate among the chosen beneficiaries. In one case, the solicitor created 100 counters and a board with designated spaces for each of the beneficiaries the testator had identified. Using the counters, the testator was able to indicate the proportion of the estate that each of the beneficiaries should have. Using those indications, the solicitor then made a number of pie charts, each with a different option for the division of the estate, for the testator to choose one.4

    
    

14. In a similar case, where the testator responded well to visual cues the solicitor created flashcards of pictures of different objects of escalating value to which the solicitor believed that the testator would relate (for example, the testator’s favourite drink, favourite holiday destination, a car, a house in the testator’s home town and a mansion). Using these over the course of several meetings, the solicitor was able to establish that the testator understood the value of these various items relative to both each other and the value of the assets in the estate.

    
    

15. In another case, the testator had full cognitive ability but was unable to communicate in the usual way as the testator’s physical functions were limited to moving their eyes. Instructions for the will were taken by utilising a letters grid which the testator used by looking at relevant letters and blinking once or twice to confirm yes or no.

    
    

16. A high level of support is therefore possible under the Banks v Goodfellow test, but it is not required: the test says nothing about requiring support to help the testator have capacity to understand all the necessary elements.5

    
    

17. The absence of any provision for supported decision-making means that the test in Banks v Goodfellow might be incompatible with Article 12 of the UN Disability Convention. Although Banks v Goodfellow passively allows supported will-making, it does not require or promote it. Something more might therefore be required.

    
    

    The Mental Capacity Act 2005

18. As we have seen in Chapter 3, the MCA provides for substituted decision-making for people who are unable to make a decision, with the substituted decision being based

    
    

    
    

    3 See para 3.17 above.

    4 Another solicitor used a similar method, but with sugar packets representing proportions of the person’s estate.

    5 Contrast with the position under the Mental Capacity Act 2005.

    on an assessment of the person’s best interests. One of the main principles of the MCA is to promote supported decision-making. Section 1(3) provides:

    
    

    A person is not to be treated as unable to make a decision unless all practical steps to help him to do so have been taken without success.

    
    

19. Supported decision-making is also provided for in the test for mental capacity, in section 3(2):

    
    

    A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

    
    

20. Section 1(3) therefore provides the principle of supported decision-making, with section 3(2) clarifying that support must be tailored to each individual’s circumstances and needs.6

    
    

21. Chapter 3 of the MCA Code of Practice provides guidance on helping people make their own decisions under the MCA. It explains that the appropriate steps to support a person will vary depending on the person’s circumstances, the decision to be made, and the length of time the person has to make it. Although significant decisions which only need to be taken once require different considerations than daily decisions, the same broad processes apply to support for each. The MCA Code of Practice highlights four important aspects of support:

    
    

    1. finding the best method of communication for the person;

       
       

    2. providing relevant information to the person in order for him or her to make the decision;

       
       

    3. making the person feel at ease, focusing on location and timing; and

       
       

    4. assessing whether support from another person, such as an advocate, will help.7

       
       

22. The MCA also creates the independent mental capacity advocate (“IMCA”) service.8 As explained in the MCA Code of Practice–

    
    

    The purpose of the IMCA service is to help particularly vulnerable people who lack capacity to make important decisions about serious medical treatment and changes of accommodation, and who have no family or friends that it would be appropriate to consult about those decisions. IMCAs will work with and support people who lack capacity, and represent their views to those who are working out their best interests.9

    
    

    
    

    6 MCA Code of Practice (2007) p 29.

    7 MCA Code of Practice (2007) ch 3. See also The British Medical Association and the Law Society,

    Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers (4th ed 2015) appendix B.

    8 Mental Capacity Act 2005, ss 35 to 41.

    9 MCA Code of Practice (2007) p 178.

23. IMCAs therefore help people without capacity by providing an independent safeguard regarding important decisions affecting them.

    
    

24. Unlike Banks v Goodfellow, the MCA does require supported decision-making. However, even this more empowering approach might be insufficient to promote the aims of the UN Disability Convention. As argued by then Senior Judge Lush, there is insufficient guidance on the supported decision-making provisions in the MCA and it is not clear who is required to provide support.10 The House of Lords Select Committee on the Mental Capacity Act recently found that supported decision-making and the adjustments required to enable supported decision-making under the MCA “are not well embedded”, and that the principles of the MCA are not working well in practice.11

    
    

25. It therefore appears to us that, if the Banks v Goodfellow test remains the test of testamentary capacity, further support may be required under the UN Disability Convention in order to support persons to have capacity to make a will. If, as we have provisionally proposed, the MCA test is adopted for testamentary capacity then thought has to be given to how that Act’s requirements should be adapted to supported will- making, and how far this would satisfy the UN Disability Convention.

    
    

    A SCHEME FOR SUPPORTED WILL-MAKING

    
    

26. We have seen, then, that there is evidence of some stakeholder support for the introduction of a scheme for supported will-making, and the arguments that it is legally required. What might a scheme for supported will-making look like?

    
    

27. The Law Commission has previously considered supported decision-making in the context of the MCA (as well as the Care Act 2014), in its project on Mental Capacity and Deprivation of Liberty.12 We explained that supported decision-making begins with a presumption of capacity: that most people are capable of making decisions if they are provided with support to do so. Beyond the existing requirements for supported decision making in the MCA, we were provisionally of the view that, in the care and medical treatment context, a formal legal process in which a supporter is appointed to assist with decision-making offers clear benefits, particularly transparency, and would help the Act to work as it was intended. We took the view that a person lacking capacity to make the relevant decision could appoint a supporter so long as that person had the capacity to appoint a person to assist him or her in making that decision.13

    
    

28. In our report we ultimately recommended the introduction of an enabling power for the Secretary of State and the Welsh Ministers to create a formal supporter scheme to provide individuals with support in order to exercise their legal capacity. We envisage that a formal supporter scheme would enable a person to appoint somebody on an ongoing basis to help him or her to make and express the decisions with which the

    
    

    
    

    10 D Lush, “Article 12 of the United Nations Convention on the Rights of Persons with Disabilities” [2011] Elder Law Journal 61.

    11 Mental Capacity and Deprivation of Liberty (2015) Law Commission Consultation Paper No 222, para 12.10, citing House of Lords Select Committee on the Mental Capacity Act: Report of Session 2013-14: Mental Capacity Act 2005: Post-legislative Scrutiny (2014) HL 139, paras 79, 104 and 108.

    12 Mental Capacity and Deprivation of Liberty (2017) Law Com No 372.

    13 Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, paras 14.43, 14.46, 14.51 and 14.55..

    person wanted support. Appointing a supporter would prevent the MCA from applying to the person in regard to the supported decisions because the person would have the capacity to make their own decisions.14

    
    

29. We take a similar provisional view in the wills context. Beyond the informal support given to testators, currently under the common law and potentially under the MCA, a formal scheme of supported will-making might be warranted. It would involve the formal process of appointing someone to assist the testator with making a will. We also consider that supported will-making might be useful in contexts in which the person’s lack of capacity is not clear or not yet established, as those persons may also benefit from support. Of course, if the person were to be found not to have capacity, even with support, the appropriate route for him or her to have a will made would be an application for a statutory will.

    
    

30. We will now consider what such a scheme could look like.

    
    

    ACTING AS A SUPPORTER

    
    

31. In our Mental Capacity and Deprivation of Liberty Consultation Paper, we identified that parameters should be set for who should be able to act as a supporter. We were open to views as to whether professionals, or alternatively, non-professionals should be able to take this role. We identified family members or friends as well placed to act as supporters, given that the relationship may already have a high level of trust. We noted that some supporter systems in other jurisdictions require supporters to demonstrate certain values, such as respect for personal dignity, or to be of good standing, evidenced by not having been convicted of certain offences.15 Ultimately, the enabling power proposed in the Mental Capacity and Deprivation of Liberty Report only specifies that the supporter must be aged 16 or over, with a provision for other requirements being set out in regulations.16

    
    

32. We discuss below who could fulfil the supporter role in the specific wills context; we bear in mind the need to ensure that there is not a conflict of interest between a person’s role as supporter and any interest that he or she might have in the testator’s estate because he or she is a likely beneficiary.

    
    

33. If professionals were to act as supporters, it makes sense to consider professionals who already provide support services.

    
    

34. One possibility is that IMCAs should be able to act as supporters for will-making.17 IMCAs provide independent advocacy and support for persons regarding some decisions under the MCA. They are required to have specific experience and training,

    
    

    
    

    14 Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, paras 14.43, 14.54 and 14.55.

    15 Mental Capacity and Deprivation of Liberty (2015) Law Commission Consultation Paper No 222, paras

    12.16 and 12.17.

    16 Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, paras 14.55 and 14.56.

    17 There are also Independent Mental Health Advocates, made available to “qualifying patients” under the Mental Health Act, which include patients liable to detention under the Act (except those subject to emergency short term detention), subject to guardianship, a community treatment order, and conditional discharge, and transferred from prison to hospital: Mental Health Act 1983, ss 130A and 130C.

    integrity and a good character, and the ability to act independently. They must be independent, meaning that they cannot provide care or treatment in a paid or professional capacity to the person they are representing, or have any links to the person instructing them, the decision maker, or any other individual involved in the person’s care or treatment.18 However, an IMCA’s role is focused on advocacy in relation to the best interests of a person without capacity; IMCAs therefore might not be suited to providing support to help a person have capacity.

    
    

35. Care Act 2014 advocates are another possibility. A Care Act advocate is made available by a local authority to an individual for needs assessments, carer’s assessments, care and support planning and safeguarding enquiries, among others. An advocate is appointed if, without an independent advocate, the person would experience “substantial difficulty” with one or more of the following:

    
    

    1. understanding relevant information;

       
       

    2. retaining that information;

       
       

    3. using or weighing that information; or

       
       

    4. communicating their views, wishes or feelings.19

       
       

36. A Care Act advocate is only appointed in the absence of an “appropriate person”: someone who, to the local authority’s satisfaction, is appropriate to support the person’s active involvement with the local authority processes.20

    
    

37. Unlike the appointment of an IMCA, a Care Act advocate is appointed not because the person lacks capacity, but because the person needs support to make decisions or communicate his or her wishes. In other words, the advocate assists the person to have capacity. The Care Act advocate’s role is to independently represent and support the individual for the purpose of facilitating his or her involvement.21 Care Act advocates, as we note in our Mental Capacity and Deprivation of Liberty report, are, however, primarily concerned with providing support to a person in the context of key decisions made by local authorities rather than providing support to individuals to make their own decisions on an ongoing basis.22

    
    

38. Care Act advocates must meet the requirements set out in regulations: these requirements include appropriate training and experience, having arrangements in place for supervision, integrity and a good character.23

    
    

39. Another possibility is that appropriately qualified practitioners could act as supporters. One stakeholder suggested that there could be a scheme of accreditation for

    
    

    18 MCA Code of Practice (2007) pp 184 to 185.

    19 Care Act 2014, ss 67(3) and (4) and 68(1) and 68(3).

    20 Care Act 2014, ss 67(5) and (6) and 68(4) and (5); Department of Health, Care and Support Statutory Guidance (2014) paras 7.35 to 7.36.

    21 As above, ss 67(2) and 68(2).

    22 Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, para 14.52.

    23 Care and Support (Independent Advocacy Support) (No. 2) Regulations 2014 (SI 2014 No 2889), reg 2(1).

    practitioners. Accredited practitioners would have expertise in supporting people with disabilities to make wills while at the same time preventing undue influence. Similarly, medical professionals could act as supporters.

    
    

40. Deputies appointed by the Court of Protection or attorneys appointed under a Lasting Power of Attorney could also potentially act as supporters. As one stakeholder noted, many people who have impaired capacity will already have a deputy or attorney providing them support. Similarly, carers or support workers might also be well placed to act as supporters. However, these categories of supporters are not always professionals (for example, attorneys, deputies and carers may be a member of the person’s family) and may lack the legal expertise to assist with testamentary capacity. Significantly, they may also be insufficiently impartial, a concern we also raise for other non-professional supporters below. Supporters, whether professional or non- professional, should be independent.

    
    

41. If professionals are to act as supporters, then cost is a concern. Currently, IMCAs and Care Act advocates are paid for by local authorities or, in Wales, local health boards. But they are only instructed in relation to specific circumstances, typically serious care and health related matters, where the state is involved and when there is no-one else to help support the person.24 One stakeholder thought that cost to the public was similarly warranted in the wills context in order to protect and promote the autonomy rights of testators, particularly elderly or disabled testators. We doubt, however, that local authorities or local health boards can, or should, pay for supporters for persons wanting to make a will. A will is a private unilateral act in which the state is not actively involved. Other costs that can be associated with making a will – for example, legal advice, and specialist assessment of capacity – are not borne by the state. We are aware, however, that there is an argument that a scheme requiring a testator to pay for support would not meet the requirements of Article 12, as the Committee on the Rights of Persons with Disabilities in its General Comment suggested that support must be free or basically free.25

    
    

42. If testators had to bear the cost of support themselves it is possible that the scheme might be unaffordable to some of those who would like to take advantage of it.

    
    

43. However, one stakeholder countered that any such cost would be likely to be significantly less than the cost of a statutory will which will usually fall onto the person for whom the will is being made.26 Supported wills would therefore be likely to offer a saving for those who would otherwise have to make a statutory will and might enable some people who could not afford a statutory will to exercise their testamentary capacity. Moreover, there may be a possibility of charities providing professionals on an unpaid basis.

    
    

44. Alternatively, non-professionals could act as supporters. Family and friends might be well placed to provide support in the sense that they are likely to know the testator well and could presumably provide support free or at a low cost. Such family and friends might already be acting as a deputy, attorney, carer or as a supporter under any formal

    
    

    
    

    24 See Mental Capacity Act 2005, ss 35 to 44; MCA Code of Practice (2007) pp 178 to 179 and 181 to 183.

    25 See para 4.7 above.

    26 Court of Protection Rules 2007 (SI 2007 No 1744), r 156.

    support scheme created by regulations made under the enabling power recommended in our Mental Capacity and Deprivation of Liberty report, and potentially eligible to act as a supporter on that basis. However, stakeholders have raised concerns about the risk of undue influence presented by individuals associated with the supported person acting in the wills context: family members and friends are likely beneficiaries under the person’s will so would be placed in a conflict of interest if acting as a supporter. As suggested by one stakeholder, supporters must be able to act independently and also be seen to act independently; it is not clear that family members or friends could do so.

    
    

45. We tentatively favour any supporter role in a scheme for supported wills being filled by a professional, despite the disadvantage of the cost to the testator. We take this view because of the increased risk of undue influence and conflicts of interest if the role were to be undertaken by family and friends. We also note that it may be necessary for a supporter to carry indemnity insurance, which would suggest that the role is one better suited to professionals.

    
    

46. Whether professionals or non-professionals could act as supporters, any scheme for supported will-making could also impose certain criteria on supporters. Similar to the criteria for IMCAs and Care Act advocates, supporters for will making could be required to have experience, training, integrity and a good character, to be independent, and to hold certain values.

    
    

    APPOINTING A SUPPORTER

    
    

47. In our Mental Capacity and Deprivation of Liberty project, we were provisionally of the view that a person should be able to appoint his or her own supporter, so long as the person retains the capacity to understand the nature of the support offered and to enter into a support agreement.27 As we set out above, our final recommendation in that project was that the person to be supported must be aged 16 or over and have the capacity to appoint a person to assist with the particular decision.28

    
    

48. A similar approach could be considered here. A person could appoint his or her own supporter, and if the person did not do so, a supporter could be appointed on the person’s behalf. However, safeguards would be needed if a person were able to appoint his or her own supporter, particularly if non-professional supporters were used, in order to prevent undue influence.

    
    

    GUIDANCE ON SUPPORT

    
    

49. Under a scheme for supported will-making, guidance would be necessary on how supporters should provide support to testators.

    
    

50. As we discussed, Chapter 3 of the MCA Code of Practice provides guidance on supported decision-making under the MCA, highlighting four important aspects of

    
    

    
    

    27 Mental Capacity and Deprivation of Liberty (2015) Law Commission Consultation Paper No 222. para 12.20.

    28 Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, para 14.55.

    support.29 Similar guidelines could be devised in terms of providing support to a person in order for him or her to have capacity to make a will.

    
    

51. The overarching objective of the supported decision-making process, pursuant to the UN Disability Convention, is to provide people with the support necessary in order to exercise their legal capacity. This overarching purpose would inform the functions of the supporter.30 In the wills context, an overarching aim of providing the necessary support could similarly inform the specific functions of the supporter in supporting the person to exercise his or her testamentary capacity.

    
    

    SAFEGUARDS

    
    

52. If a scheme for supported will-making were created, it would require sufficient safeguards to prevent abuse. The need for safeguards, particularly to prevent undue influence, was highlighted by the stakeholders to whom we have spoken so far.

    
    

53. One option to prevent abuse by supporters would be to impose a rule that a supporter would not be able to benefit under the person’s will. If this approach is taken, the categories of people who should not be able to benefit where a person has been formally supported to make a will should be carefully demarcated. Our views is that those categories should align with the provisional proposals that we make in respect of reform to the existing rule that prevents the witnesses to a will, and their spouses or civil partners, from taking any gifts to them in the will. We provisionally propose that the witnesses’ cohabitants should also be prevented from benefitting and ask consultees whether they think that gifts to other family members of the witness (such as parents or siblings) should also be void.31 We would therefore suggest that it would be appropriate that neither the supporter, not his or her spouse, civil partner or cohabitant (or, depending on the responses that we receive, other family members) should be able to benefit from a will for which support has been formally provided.

    
    

54. In the Mental Capacity and Deprivation of Liberty consultation paper we also noted that some jurisdictions impose a fiduciary relationship between the supporter and the person, noting that we were open to thoughts on this approach.32 A fiduciary has been described as:

    
    

    someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty.33

    
    

55. We note that the MCA Code of Practice explains that both attorneys and deputies are in a fiduciary relationship with donors and protected persons and that this means that the attorney or deputy must not take advantage of his or her position; put him or herself in a position where personal interests would conflict with his or her duties; nor use his

    
    

    
    

    29 See para 4.21 above.

    30 Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, para 14.45.

    31 See Chapter 5.

    32 Mental Capacity and Deprivation of Liberty (2015) Law Commission Consultation Paper No 222, para 12.18.

    33 Bristol and West Building Society v Mothew [1998] Ch 1, p 18.

    or her position for personal benefit.34 We question whether or not it would be appropriate for the relationship between supporter and testator to be defined as a fiduciary relationship as a safeguard against undue influence, and ask for consultees’ views.

    
    

    PROVIDING FOR THE SCHEME IN LAW

    
    

56. Another consideration is whether a supported will-making scheme would be laid out in legislation, regulation or informal guidance. Like the IMCA service, a supported will- making scheme could be enabled in primary legislation, with further detail provided in regulations.

    
    

57. It would be possible for supported will-making to be informally provided for in guidance. Although informal guidance may be helpful, it would not create a scheme. This approach would be unlikely to meet the requirements of the UN Disability Convention or result in a change from the current situations in which support is provided in some cases but not consistently and uniformly. For those reasons, we do not favour this approach.

    
    

58. Alternatively, an enabling power could be created. An enabling power in legislation, with detail on the workings of the scheme outlined in regulation or guidance, might be attractive option because of the flexibility it offers. In order to formulate a workable scheme, additional consultation by Government might be required. That process would allow facilitate the further involvement of the appropriate Government departments and stakeholders.

    
    

59. It may be possible for a person providing support under any scheme introduced by virtue of the enabling power recommended in our Report on Mental Capacity and Deprivation of Liberty also to provide support in a wills context. We take the view that the enabling power in the draft Bill produced with that report is wide enough to permit that approach given that the power leaves the detail of who might act as a supporter (and other details of the scheme) to be set out in regulations.35 Consideration would need to be given to ensure that a supporter used in a care and treatment context, under any such formal scheme, could appropriately fulfil a supporter role in the wills context. It should, however, also be possible for regulations to make different provision as to the expertise or experience of a supporter, or to impose different restrictions, depending on the decision for which support is being provided.36

    
    

    
    

    34 MCA Code of Practice, pp 132 and 154.

    35 See Clause 12 of the draft Mental Capacity (Amendment) Bill at p 200 and 201 of Mental Capacity and Deprivation of Liberty (2017) Law Com No 372.

    36 For example, we noted that some jurisdictions restrict the kind of decisions that can be made in a supporter scheme, for example, financial decisions or certain welfare decisions: see Mental Capacity and Deprivation of Liberty (2015) Law Commission Consultation Paper No 222, para 12.22. Clause 12 of the draft Bill leaves open the possibility of specifying decisions to which a supported decision-making scheme would not apply. Consideration would need to be given to the expertise of the supporter and relationship with the person supported.

    
    

    Consultation Question 14.

    Do consultees think that a supported will-making scheme is practical or desirable? If so, we ask for consultees’ views on:

    1. who should be able to act as supporters in a scheme of supported will-making?

       
       

    2. should any such category include non-professionals as well as professionals?

       
       

    3. should supporters be required to meet certain criteria in order to act as a supporter and, if so, what those criteria should be?

       
       

    4. how should supporters be appointed?

       
       

    5. what should be the overarching objective(s) of the supporter role?

       
       

    6. how should guidance to supporters be provided?

       
       

    7. what safeguards are necessary in a scheme of supported will-making? In particular:

       
       

       1. should a supporter be prevented from benefitting under a will?

          
          

       2. should a fiduciary relationship be created between a supporter and the person he or she is supporting?

Chapter 5: Formalities

INTRODUCTION

1. For a will to be valid, it must comply with certain formality requirements. Formality requirements are commonly found in law. They have been defined as requirements “that matters of substance must be put into a particular form (in order to have a specified legal effect)”.1

   
   

2. The requirements as to the formal validity of a will – the particular form that a will must take to have legal effect - are contained in section 9 of the Wills Act 1837. The formal requirements as to the execution of a will are therefore long-established2 and many lay people also have some awareness of the need, for example, for a testator’s signature to be witnessed.

   
   

3. Given the age of the formality requirements and the extent to which aspects of those requirements are thought natural or obvious parts of will-making, it might be difficult to imagine that the requirements could be anything other than they are. However, a look at the law in other jurisdictions shows us that the requirements governing the formal validity of wills vary widely. In civil law jurisdictions, such as France and Germany, “notarial wills” are common.3 These wills derive their validity from being prepared by a notary, who is a public officer. It is also compulsory to register notarial wills in several jurisdictions.4 There is no equivalent tradition of reliance on a notary in England and Wales, where a notary is an independent professional rather than a public officer.5 Nor is there any requirement to register wills in this jurisdiction. In Scotland, the law enables a will to be valid simply where it has been written and signed at the end of the document by the testator.6

   
   

   
   

   1 P Critchley, ‘Taking Formalities Seriously’ in Land Law: Themes and Perspectives (eds Bright and Dewar, 1988) p 508.

   2 A new s 9 was substituted by Administration of Justice Act 1982, s 17 but the new section is not fundamentally different in its requirements.

   3 See K G C Reid, MJ De Waal and R Zimmermann, “Testamentary Formalities in Historical and Comparative Perspective” in K G C Reid, MJ De Waal and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 448.

   4 See K G C Reid, MJ De Waal and R Zimmermann, “Testamentary Formalities in Historical and Comparative Perspective” in K G C Reid, MJ De Waal and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011).

   5 In 1980 the Law Reform Committee noted that that “A…compelling reason for not introducing a notarial system into our law is that there are a number of differences between continental notaries and solicitors in this country and a notarial system would not be workable here without conferring upon solicitors powers which they do not at present have”: Law Reform Committee, Twenty Second Report (The Making and Revocation of Wills) (1980) Cmnd 7902, p 10.

   6 Requirements of Writing (Scotland) Act 1995, ss 1(2)(c), 2(1).

4. As we will see in the following chapter, the possibility of electronically executed wills may have implications for the legal requirements of formal validity.7 We discuss electronic wills in Chapter 6 and note that they will need to be governed by tailored statutory provisions. Consequently, the formality requirements that we consider in this chapter relate to physical, hard copy wills.

   
   

5. We have already discussed, in the introductory chapter, the essential features of a will,8 and it is worth considering what this means in relation to formalities. A will is created to have effect in the future, after the testator’s death, so there will be a delay, possibly extending to several decades or more, between the will being written and the testator’s executors acting upon its provisions. In addition, the testator will necessarily no longer be alive at the time that the will takes effect and will therefore be unable to confirm the authenticity of the document expressed to contain his or her testamentary intentions. By contrast, in many other situations, the legal document by which a person transfers property, grants rights or is subjected to obligations, will take immediate effect. Should a dispute arise as to the authenticity of such a contract, or deed (or whatever it may be) that person will usually be available to confirm that he or she was indeed a party to, or the maker of, the document in question.9 It is therefore useful to consider the purpose of will formalities.

   
   

   THE PURPOSE OF FORMALITIES

   
   

6. Formality requirements are considered to perform four main functions.10

   
   

   1. An evidentiary function: formalities provide proof that the will was executed by the testator. This evidentiary function is particularly important as the will may have been executed decades before the testator’s death and its validity challenged only after his or her death.

      
      

   2. A cautionary function: formalities alert the testator to the serious nature of making a will and cause them to think carefully about what they want to achieve with their will. This function might also be understood as one of “consumer protection” or of preventing a party from creating a legally binding document inadvertently.11

      
      

      
      

      
      

      7 Which, currently, does not happen in practice: the position under the Wills Act 1837 is unclear—see the following chapter for a discussion of the law on this point.

      8 See para 1.7 above.

      9 Of course, other situations do exist which are analogous to the situation of the will after the testator’s death, for example, the donor of a lasting power of attorney after he or she has lost capacity, or after the death of a person who has nominated a beneficiary for his or her life assurance or pension benefits.

      10 L Fuller, “Consideration and Form” (1941) 51:5 Columbia Law Review 799 at 803; A Gulliver and C Tilson, “Classification of Gratuitous Transfers” (1941) 51 Yale Law Journal 1; and J Langbein, “Substantial compliance with the Wills Act” (1975) 88:3 Harvard Law Review 489. The third article drew on the first two articles (see nn 12 and 15 in Langbein’s article) which both date from the 1940s and also discuss documents other than wills. All the articles appeared in US journals; it appears that there has been less interest in wills formalities requirements in English law journals.

      11 This aspect of a cautionary function is discussed in the Law Commission’s report, Transfer of land - formalities in contracts for sale of land (1987) Law Com No 164, p 6.

   3. A channelling function: formalities mean that a will provides a well-defined means of passing property on death and testators are channelled towards a well- understood, standard method of accomplishing their ends.

      
      

   4. A protective function: formalities can assist in shielding the testator from fraud and undue influence when making their will. For example, a signed document is more difficult to forge than an unsigned document and the presence of disinterested witnesses could protect the testator from pressure exerted by a beneficiary.12

      
      

7. Academics who have considered the purpose of formality requirements do not all agree that each of these functions are relevant, although there is general agreement that formalities serve evidentiary and cautionary functions.13 Further, formality requirements are not invariably seen as an effective means of fulfilling these functions.14 Nevertheless, we think that these functions are helpful to bear in mind in thinking about any reform of the formality requirements for a will.15

   
   

8. In reviewing formality requirements, we are also aware of the need to balance competing objectives. On the one hand, formalities represent a barrier to people writing wills. A person’s wishes may be defeated because he or she has not executed a document in the correct form, since a will that does not comply with formality requirements is invalid.16 If a person dies without a valid will, that person’s estate will then generally pass according to the intestacy rules. These rules provide for a person’s estate to pass on to specified relatives, with the result varying depending both on the person’s situation when he or she dies (for example, whether he or she is married or has children) and on the estate’s value.17 On the other hand, if formality requirements are not effective, then there is a risk of wills being accepted as valid that do not in fact represent the testator’s wishes; for example, because the will has been forged, the testator did not appreciate that a document would be given effect as a will, or because the testator was subjected to undue influence.

   
   

   
   

   12 Other analyses identify other functions: for example, Critchley identifies that will formalities may be of fiscal benefit to the government by providing the means by which to collect a tax such as stamp duty. See P Critchley, “Privileged wills and the testamentary formalities: a time to die?” [1999] Cambridge Law Journal 49 at 51. An older article by Perillo, considering contractual formalities, also identifies additional functions, such as the earmarking of intent to contract, and educational functions, but most of those suggested can be fitted within the broader categories discussed in the text above. See Joseph M Perillo [1974] “The Statute of Frauds in the light of the functions and dysfunctions of form.” Fordham Law Review 43 at 39. Horton recognises an “anti-externality” function. See D Horton, “Tomorrow’s Inheritance: The Frontiers of Estate Planning Formalism” (forthcoming) Boston College Law Review, Vol. 58.

   13 All three articles cited in n 10 identify these functions. The channelling function is identified by Fuller and by Langbein, the latter of whom also identifies, like Gulliver and Tilson, the protective function.

   14 See A Gulliver and C Tilson, “Classification of Gratuitous Transfers” (1941) 51 Yale Law Journal 1, p 9 and J Langbein, “Substantial compliance with the Wills Act” (1975) 88:3 Harvard Law Review 489, p 496.

   15 The functions of formalities were discussed in similar terms, and used for analysis, in the Law Commission’s report, Transfer of land - formalities in contracts for sale of land (1987) Law Com No 164, pp 6 and 7.

   16 Wills Act 1837, s 9.

   17 What happens to a person’s estate on death may also be affected in other ways, for example by proprietary estoppel or a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

9. It is also important that the formality requirements for a valid will are simple and accessible, whilst acknowledging that some complexity may be necessary to ensure that formalities perform their functions. We want to encourage people to make wills, rather than to make it more difficult for people to do so. A will – particularly a simple will

   – should continue to be a document that a testator can write and execute for him or herself and be confident that the will is valid. Stakeholders highlighted that one feature they like about the current law is that there is only one form of valid will. We are keen to maintain this feature of the law as it brings simplicity.18

   
   

   THE CURRENT LAW OF FORMALITIES

   
   

10. The formality requirements that must be complied with for a will to be valid are given in section 9 of the 1837 Act.19 It is worth quoting the section in full:

    
    

    No will shall be valid unless—

    
    

    1. it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and

       
       

    2. it appears that the testator intended by his signature to give effect to the will; and

       
       

    3. the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

       
       

    4. each witness either—

       
       

       1. attests and signs the will; or

          
          

       2. acknowledges his signature,

    
    

    in the presence of the testator (but not necessarily in the presence of any other witness),

    
    

    but no form of attestation shall be necessary.

    
    

    Presumption of due execution

11. If it appears on the face of the will that the formalities set out in section 9 of the 1837 Act have been complied with, then this allows the court to presume that the will was validly executed and expresses the testator’s intentions.20 It is often said that “the strongest evidence” is required to rebut the presumption of due execution.21 However, the presumption applies with greater or lesser force according to the circumstances of

    
    

    
    

    18 With the exception of any different form for an electronic will that might be introduced—see our provisional proposal for an enabling power, para 5.81.

    19 There are exceptions: where the will is a statutory will, a privileged will or where the formal validity of the will is determined by the law of a foreign jurisdiction rather than English law. These exceptions are considered later in this chapter at 5.36.

    20 Sherrington v Sherrington [2005] EWCA Civ 326, [2005] WTLR 587 at [42] by Peter Gibson LJ; Channon v Perkins [2005] EWCA Civ 1808, [2006] WTLR 425 at [6] by Neuberger LJ.

    21 Sherrington v Sherrington [2005] EWCA Civ 326, [2005] WTLR 587 at [62].

    each case.22 Hence, for example, a strong presumption arises where a will contains a formal attestation clause.23 An attestation clause in a will records compliance with section 9 of the 1837 Act in the execution of the document; an example would be:

    
    

    Dated this… day of … 20…

    
    

    Signed by the testator in our presence and then by us in his. [Signature of testator]

    [Signature, addresses and descriptions of two witnesses]24

    
    

12. The presumption of due execution can be displaced by evidence that the circumstances of the execution of the will in fact differed from what is recorded in the attestation clause and did not comply with section 9 of the 1837 Act.25 A weaker presumption will apply where the clause is in an unusual or irregular form.26 A presumption of due execution is still applied where the will is informal and contains no attestation clause, as long as there is no evidence that the will has not been duly executed.27

    
    

    The formalities required by section 9

13. Looking more closely at section 9 of the 1837 Act we see that it covers several distinct aspects of making a will: the form of the will (that is, the will must be in writing, signed by the testator and by at least two witnesses), the circumstances of the testator’s signature and the circumstances of the witnesses’ signatures.

    
    

    In writing

14. A will must be in writing.28 The Interpretation Act 1978 provides a broad definition of “writing”. Therefore, a will may be hand-written, typed, printed, lithographed or take any other mode “of representing or reproducing words in a visible form”.29

    
    

15. A will may be written in any language30 and there are no restrictions as to the material upon which a will is written.31 A will may be written in pen or pencil. However, where both are used there is a presumption that that pencil writing is deliberative – that it

    
    

    
    

    
    

    22 Vinnicombe v Butler (1864) 3 Sw & Tr 580 at 582; Harris v Knight (1890) 15 PD 170 at 183–184.

    23 Lloyd v Roberts (1858) 12 Moo P 158; Smith v Smith (1866) 1 P & D 143; Wright v Rogers (1869) 38 LJP 67; In the Estate of Musgrove [1927] P 264; Re Webb [1964] 1 WLR. 509.

    24 L King, K Biggs and P Gausden, A Practitioner’s Guide to Wills (3rd ed 2010) p 33. Different forms of attestation clause are necessary where the will is executed in different circumstances, for example, where another person signs on the testator’s behalf or where the testator is blind.

    25 Ahluwalia v Singh [2011] EWHC 2907, [2012] WTLR 1.

    26 Re Rawlinson [2010] EWHC 1269 (Ch), [2010] WTLR 1443; Lim v Thompson [2009] EWHC 3341 (Ch), [2010] WTLR 661.

    27 Salmon v Williams-Reid [2010] EWHC 1315 (Ch).

    28 Wills Act 1837, s 9(a).

    29 Interpretation Act 1978, sch 1.

    30 Whiting v Turner (1903) 89 LT 71 (French); Kell v Charmer (1856) 23 Beav 195 (private code).

    31 Hodson v Barnes (1926) 43 TLR 71 (egg shells).

    relates to the testator’s tentative considerations rather than his or her settled decisions

    – and that it does not form part of the will unless the court decides that the pencil writing represents the testator’s final intentions.32

    
    

    The signature of the testator

16. Although the requirement that the testator sign the will is a strict one, the courts have accepted as a signature marks short of a manuscript name. The requirement of a signature has been met, for example, by the testator’s initials,33 a simple mark made by the testator34 (which does not have to be a cross)35 or even the testator’s thumb print.36 In the chapter on electronic wills we discuss the question of the validity of a signature made electronically.37 There are limits to what will be accepted, however: in Lim v Thompson, Judge Purle QC, sitting as a High Court Judge, held that “a photocopy of a previous version of the will with a photocopied signature of the testator is not a document which is signed by the testator at all”.38

    
    

17. Section 9(b) of the 1837 Act requires that the testator intended by his signature to give effect to the will.39 Whether the testator has that intention is a matter of fact, and evidence from outside the will itself (extrinsic evidence) can be admitted in court proceedings to determine the question.40

    
    

18. There is no requirement as to the position of the testator’s signature, albeit that, in practice the signature will usually appear at the end of the will.41 The testator should sign the will after the clauses recording the dispositions he or she wishes to make have been stated in the document. However, because the essential requirement under section 9 is that the testator’s signature must be intended to give effect to the will, a will may be valid where the testator recorded the testamentary dispositions after signing it if both operations were part of the same continuing process.42

    
    

    
    

    32 In the Goods of Adams (1872) LR 2 P & D 367.

    33 Re Blewitt (1880) 5 PD 116; Reynolds v Reynolds [2005] EWHC 6 (Ch).

    34 Baker v Dening (1838) 8 A & E 94; Re Field (1843) 3 Curt 752.

    35 Re Kieran [1933] Ir R 222.

    36 Re Finn (1935) 154 LT 242.

    37 Chapter 6.

    38 Lim v Thompson [2009] EWHC 3341 (Ch), [2010] WTLR 661 at [25].

    39 This requirement was introduced into the Wills Act 1837 by s 17 of the Administration of Justice Act 1982, which substituted a new version of s 9. This requirement was not contained in the original s 9 and it replaced the previous requirement that the testator’s signature had to be at the foot, that is, the end, of the document.

    40 In the Goods of Walker (1862) 2 Sw & Tr 354; In the Goods of Casmore (1869) LR 1 P & D 653; In the Goods of Mann [1942] P 146; In the Estate of Bean [1944] P 83; Re Beadle [1974] 1 WLR 417.

    41 While the testator does not need to sign every page of a will the pages must be connected with the signature. This does not mean that the pages need to physically attached together; it appears that it is enough that the pages comprising the will are in the same room and under the control of the testator when signed, see In the Goods of Tiernan [1942] IR 572; Sterling v Bruce [1973] NI 255.

    42 Re White [1991] Ch 1; Wood v Smith [1993] Ch 90; Weatherhill v Pearce [1995] 1 WLR 592. Before the introduction of the new Wills Act 1837, s 9 by Administration of Justice Act 1982, s 17 it was a strict requirement that the testator signed the will after the testamentary dispositions had been recorded. This had

    Signature made or acknowledged in the presence of witnesses

19. Under section 9(c) the testator’s signature must be “…made or acknowledged in the presence of two or more witnesses present at the same time.” If the testator is signing in the presence of witnesses, it is only necessary that the witnesses are aware that the testator is writing. They do not need to see what the testator is writing or to know what he is writing.43

    
    

20. Where the will has been signed without the witnesses being present, it is sufficient for the testator to acknowledge to the witnesses that the signature on the will is his or her own. The will must have been signed before the testator acknowledges his or her signature.44 The testator’s acknowledgment does not need to include any specific form of words or action.45 For example, in Kayll v Rawlinson, the testator was silent while the first witness (in whose presence the testator had signed) explained to the second witness that both the testator and the first witness had signed and asked the second witness to sign. This was held to constitute acknowledgement by the testator of his earlier signature of the will.46 The witnesses do not need to see the signature, they must, however, have had the opportunity to see it.47

    
    

21. A requirement for there to be two witnesses to a will is not unusual, though not universal in countries that require a will to be witnessed. For example, while Austria and Brazil require three witnesses, in Scotland only one is required.48 Stakeholders have expressed mixed views on the value of witnesses. Some see them as providing an important evidentiary safeguard, while others query whether any protection offered by witnesses is eclipsed by the protection offered by using a professional to write a will. We see value in the evidentiary function of witnesses and consider there to be an advantage in having two witnesses given that the validity of a will may be questioned many years after it is executed. Although it has been suggested that three witnesses would offer greater protection,49 we take the view that any such additional benefit would be small and outweighed by the fact that it would make a will more difficult to make.

    
    

    been made clear by Wills Act Amendment Act 1852, s 1 which clarified Wills Act 1837, s 9 with regard to when a signature to a will should be deemed valid.

    43 Smith v Smith (1866) 1 P & D 143.

    44 Pearson v Pearson (1871) 2 P & D 451; Fischer v Popham (1875) 3 P & D 246.

    45 Hudson v Parker (1844) 1 Rob Ecc 14. For example, it has been held sufficient for the purposes of acknowledgement that two persons were asked to sign as witnesses (Daintree & Butcher v Fasculo (1888) 13 PD 102) and a gesture as small as a nod of the head may also suffice to indicate that person is acknowledging his or her signature (Goodall v Hadler, The Times 20 October 1960).

    46 [2010] EWHC 1269 (Ch), [2010] WTLR 1443.

    47 Re Gunstan (1882) 7 PD 102. The opportunity to see the signature must have been a physical opportunity and so the requirements of s 9(c) are not met where the testator’s signature is covered by a fold in the page (Hudson v Parker (1844) 1 Rob Ecc 14; In the Goods of Pearson (1864) 33 LJP 177; Re Groffman [1969] 1 WLR 733), or by blotting paper (Re Gunstan (1882) 7 PD 102). It is not enough that the testator would have uncovered his signature if asked to (Re Groffman [1969] 1 WLR 733).

    48 K G C Reid, MJ De Waal, and R Zimmermann, “Testamentary Formalities in Historical and Comparative Perspective” in R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 446.

    49 A Borkowski, “Reforming section 9 of the Wills Act” [2000] The Conveyancer and Property Lawyer 31 at p 39.

22. It is worth emphasising that both witnesses have to be present at the same time when a testator signs or acknowledges a will. In this context ‘presence’ denotes actual visual presence and the courts have developed a line-of-sight test.50 A will has been held to be invalid where the testator acknowledged his or her signature in the presence of each of the witnesses individually.51 We have heard of instances where the need for both witnesses to be present can be difficult; for example, where a practitioner attends an elderly client’s home for a will to be executed. However, we are of the view that any inconvenience in having to find two witnesses to attend at the same time is outweighed by the protective and evidentiary benefits of having the witnesses present at the same time: two witnesses at one time may be more likely to provide protection for the testator against undue influence and fraud and, should the will be challenged, each can provide corroboration (or challenge) to the other’s account of the execution of the will.

    
    

    Signing on the testator’s behalf

23. Under section 9(a) of the 1837 Act, a will can be signed by a third party on the testator’s behalf. There are no restrictions on who that third party may be. An attesting witness,52 the person who wrote the will,53 or the sole beneficiary of the will54 may sign validly on behalf of the testator.

    
    

24. In the leading case on the nature of the testator’s direction to sign on his or her behalf, Lord Justice Lewison held that “it is not enough for a third party to sign the will in the presence of the testator” and that “a ‘direction’ to sign connotes a more active role on the part of the testator than a mere ‘acknowledgement’ of his or her signature under section 9(c)”. Therefore, the testator can only issue a direction for the purposes of section 9(b) of the 1837 Act by “positive and discernible communication (which may be verbal or non-verbal)… that he wishes the will to be signed on his behalf by the third party”.55

    
    

    The signature by witnesses

25. Section 9(d) of the 1837 Act requires that:

    
    

    …each witness either—

    
    

    1. attests and signs the will; or

       
       

    2. acknowledges his signature,

    
    

    in the presence of the testator (but not necessarily in the presence of any other witness)

    
    

    
    

    50 In the Goods of Allen (1839) 2 Curt 331; see Shires v Glascock (1688) 91 ER 584; Casson v Dade (1781) 28 ER 1010; Tribe v Tribe (1849) 163 ER 1210; Norton v Bazett (1856) 164 ER 569.

    51 Re Groffman [1969] 1 WLR 733.

    52 Re Bailey (1838) 1 Curt 914; Smith v Harris (1845) 1 Rob 262; Doe d Caldwell b Lee (1852) 19 LTOS 49.

    53 Re Elcock (1869) 20 LT 757.

    54 Barrett v Bem [2011] EWHC 1247 (Ch), [2012] Ch 573, Mr Justice Vos, overturned in the Court of Appeal on a different point.

    55 Barrett v Bem [2012] EWCA Civ 52; [2012] Ch 573 at [19], [22] and [24].

26. It appears that minors can be witnesses to wills.56 A blind person cannot witness a will since witnessing is an inherently visual act.57 A witness must be mentally as well as physically present and therefore cannot be asleep, intoxicated or of unsound mind.58

    
    

27. Although it may seem surprising that a minor can be a witness, we are not aware of any difficulties that have arisen in practice. We do not see any reason why a child should not be able to be a witness as long as he or she (like any witness) understands what he or she is doing when witnessing a testator’s signature so as to be able to give evidence of their witnessing, if this is later required.

    
    

28. Sections 16 and 17 of the 1837 Act expressly permit, respectively, both a creditor of the testator (and his or her spouse or civil partner of the creditor) and an executor of the testator’s will to be a competent witness to the execution of the will.

    
    

29. In contrast, section 15 of the 1837 Act invalidates gifts59 made in the will to witnesses and their spouses or civil partners.60 The will remains otherwise valid.

    
    

30. Witnesses have to sign or acknowledge their signature in the presence of the testator but do not have to do so in the presence of the other witness. Witnesses do not need to have any specific knowledge of what the document is. They do not have to know that the document they are signing is a will.61 If the testator acknowledges his signature rather than signing in the presence of the witnesses, the witnesses do not need to know that acknowledgement is a formal requirement of valid execution.62

    
    

    Attestation

31. Section 9(d)(i) of the 1837 Act provides that a witness should “attest” as well as sign the will. We have cited above a typical attestation clause,63 but no form of attestation is necessary;64 attestation may be formal or informal.65 It is unclear what the need for attestation adds to the formalities for a will. According to Williams on Wills, attestation

    
    

    
    

    56 See Wilson v Beddard (1841) 59 ER 1041 (14 year old) and A Borkowski, “Reforming section 9 of the Wills Act”, [2000] Conveyancer and Property Lawyer 31.

    57 In the Estate of Gibson [1949] P 434.

    58 Hudson v Parker (1844) 1 Rob Ecc 14 at [24]. Section 14 of the 1837 Act provides that a will shall not be invalid where a witness, at the time of execution or afterwards, is incompetent to be admitted to be a witness to prove the execution of the will. However, this relates to competency to act as a witness, rather than mental capacity and “incompetent” in the context of the section “…refers to those persons who in 1837 were incompetent to give evidence, for example, the parties, their spouses, persons of no religious belief, etc.” See J R Martyn and N Cadick, Williams, Mortimer and Sunnucks Executors, Administrators and Probate (19th ed of Williams on Executors/7th ed of Mortimer on Probate, 2008).

    59 “Gift” in this section means any benefit under the will (the section says “…any beneficial devise, legacy, estate, interest, gift, or appointment, of or affecting any real or personal estate (other than and except any charges and directions for the payment of any debt or debts)…”).

    60 Read in conjunction with the Civil Partnership Act 2004, sch 4, para 3.

    61 Re Benjamin’s Estate (1934) 150 LT 417.

    62 Kayll v Rawlinson [2010] EWHC 1269 (Ch); [2010] WTLR 1443.

    63 See para 5.11 above.

    64 Wills Act 1837, s 9(d).

    65 But an attestation clause is usually included, at least in a professionally drawn will.

    simply means that the testator should sign in the presence of two witnesses who must then attest and sign (or acknowledge) their signatures in the testator’s presence.66 If this is the case, then attestation does not appear to add to the requirement in in section 9(c). The witnesses must intend to attest the will, but that intention may be evidenced by a signature alone.67 Witnesses may sign anywhere on the will as long as their intention to attest the will is clear.68 A witness who has attested a will should be able to say that he or she knows that the testator signed the document.69

    
    

32. We have explained above that witnesses may acknowledge their signature in the presence of the testator, instead of signing in the presence of the testator. Where this happens, there is no statutory requirement of attestation. In this respect, the drafting of section 9 has led to some confusion because the requirement that a witness attest as well as sign the will in the presence of the testator is absent when the witness acknowledges his or her signature. Since attestation appears to be used as a requirement distinct from signing, it is difficult to understand what attest is supposed to mean in this context. We address this difficulty further below.70

    
    

    No requirement to date a will

33. The 1837 Act does not require a will to be dated. Therefore the lack of a date or the inclusion of the wrong date cannot invalidate a will.71

    
    

34. It is, however, already standard professional practice for a professionally drafted will to be dated and the inclusion of a date on a will is helpful in several ways. For example, it is easier to determine the testator’s capacity when the date of execution is known; descriptions of persons and property are generally interpreted as they would be understood at the date of execution; and where a testator has executed more than one will it is easier to determine which is the most recent if the wills are dated.72

    
    

35. Dating a will would be a relatively small and simple additional requirement to introduce. However, we consider it an undesirable formality requirement. The sanction of invalidity, should the will not be dated, is disproportionate to what would be a relatively minor deficiency in form. Introducing a further formality requirement risks creating another avenue by which a will could be invalid, even where it is clear that the testator intended to execute it. And, given the fact that most wills are already likely to be dated, we do not believe that imposing a sanction upon testators who fail to date their wills would foster

    
    

    
    

    
    

    66 R F D Barlow, R A Wallington, A L Meadway & J A D Macdonald, Williams on Wills (10th ed 2014), vol 1, 12.1.

    67 Hudson v Parker (1844) 1 Rob Ecc 14. The witness must intend to attest the whole will in order for it to be duly executed, see Re Cunningham’s Goods (1860) 4 Sw & Tr 194. 1.1.

    68 Re Streatley’s Goods [1891] P 172.

    69 Brown v Skirrow [1902] P 3.

    70 See para 5.62 below.

    71 Corbett v Newey [1998] Ch 57 at 64, 67, 70. However, section 5(5) of the Children Act 1989 requires that any appointment of a guardian of a child made by will must be dated.

    72 A Borkowski, “Reforming section 9 of the Wills Act” [2000] The Conveyancer and Property Lawyer 31. A document appointing a guardian must be dated. See para 14.30.

    a new and beneficial practice. For those reasons, our view is that dating wills should remain a matter of good practice rather than a formal requirement.

    
    

    Exceptions to the application of section 9 of the Wills Act 1837

36. There are a number of situations in which compliance with section 9 is not required in order for there to be a valid will. In Chapter 3, we discuss statutory wills; that is, wills which are made on an application to the Court of Protection for a person who lacks the testamentary capacity to make their own will. Here, we briefly outline two other exceptions.

    
    

    Foreign wills

37. A will that is formally valid under the law of another jurisdiction with which the testator or the will has a connection may be recognised under English law. The rules governing recognition of foreign wills are contained in the Wills Act 1963.

    
    

38. The 1963 Act contains a general rule which allows a will to be formally valid if it conforms to the law of the jurisdiction:

    
    

    1. in which it was executed;

       
       

    2. in which the testator was domiciled or habitually resident (whether at the time of the execution of the will or at the time of the testator’s death); or

       
       

    3. of which the testator was a national (whether at the time of the execution or at the time of their death);73

       
       

39. There are further rules which provide additional bases for a will to be formally valid in more specific situations.74

    
    

40. Consequently, for some wills there will be more than one possible avenue to formal validity. For example, where a French citizen executes a will in Scotland and subsequently dies domiciled in England, that will is validly executed if its execution is valid under any of French, Scottish or English law.75

    
    

    Privileged wills

41. Wills made by privileged testators are exempt from the formal requirements in section 9 of the 1837 Act; such testators can make wills without any formalities at all.

    
    

42. There are three classes of privileged testator:

    
    

    
    

    
    

    73 Wills Act 1963, s 1.

    74 For example, a will executed on board vessels or aircrafts in foreign jurisdictions (see s 2(1)(a)) or a will concerning immovable property in foreign jurisdictions (see s 2(1)(b)).

    75 There is also provision in English law, under Administration of Justice Act 1982, ss 27 and 28 for an international will made under the annex to the Washington Convention on International Wills (reproduced in the 1982 Act, sch 2) to be valid. If made in a particular form set out in the Annex such a will would be valid irrespective of the place it is made, of the location of the assets, and of the nationality, domicile or residence of the testator. These provisions are not, however, yet in force.

    1. soldiers in actual military service;

       
       

    2. any mariner or seaman being at sea; and

       
       

    3. members of the naval or marine forces in actual military service.76

       
       

43. Actual military service has been construed broadly to include:

    
    

    any soldier, sailor, or airman… if he is actually serving with the Armed Forces in connexion with military operations which are or have been taking place or are believed to be imminent.77

    
    

44. In contrast to the general position that minors do not have the capacity to make a will,78 those minors who are members of the privileged groups are able to make valid wills.79

    
    

45. Privileged wills may be written or oral.80 They do not need to be signed or witnessed and remain valid even when the testator has ceased to be a member of one of the three privileged groups.81

    
    

    REFORM

    
    

46. We have noted above that the need to comply with formalities can be a barrier to making a will.82 In the introduction to this Consultation Paper we explained that there are now a number of ways in which property passes on a person’s death other than through a will; such as where property is co-owned by people (particularly spouses, civil partners and cohabitees) as “joint tenants” and nominations for the receipt of death benefits and a dependant’s pension under a pension scheme.83 The formalities imposed by the 1837 Act, discussed above, do not generally apply to these means of passing property on death.84 Therefore, to help inform the final recommendations we shall make on formalities in our Report we wish to ask consultees more general questions on whether they think that the current level of formalities for the making of wills is dissuading those

    
    

    
    

    
    

    76 Wills Act 1837, s 11 and Wills (Soldiers and Sailors) Act 1918, s 2. “Actual military service” is a broader category than would be encompassed, in the case of mariners or seamen, by the term “being at sea” hence the reason for the extension of the categories of privileged testator, by 1918 Act, s 2 beyond the first two categories which are set out in 1837 Act, s 11.

    77 Re Wingham [1948] 2 All ER 908.

    78 Wills Act 1837, s 7.

    79 Wills (Soldiers and Sailors) Act 1918, ss 1 and 3 confirm that Wills Act 1837, s 11 allows minors who fall within the privileged groups to make valid wills. However, there is a caveat to this in that it appears that the privileged, minor testator (who is unmarried) cannot dispose by will of a fee simple interest in land. See J R Martyn, A Learmonth, J E Gordon, C Ford and T Fletcher, Theobald on Wills (18th ed 2016) para 4-030.

    80 Morrell v Morrell (1827) 1 Hag Ecc 51.

    81 Re Coleman [1920] 2 IR 332; Re Booth [1926] P 118; In the Estate of Snow (1963) 107 SJ 216.

    82 See para 5.8 above.

    83 A donatio mortis causa is another way that property may be passed on death, and we discuss this in Chapter 13.

    84 A Braun, “Will-substitutes in England and Wales” in A Braun and A Röthel (eds), Passing Wealth on Death: Will-Substitutes in Comparative Perspective (2016) pp 63 to 65.

    who would otherwise wish to make wills from doing so and what other barriers exist to people making wills.

    
    

    
    

    
    

    The need for a will to be in writing

47. It would be possible to provide that a valid will could be made orally. It is already the case that an oral will can be valid when it is a privileged will. We do not consider, however, that it would be desirable to allow oral wills otherwise than in the context of privileged wills. In a 1980 Report, the Law Reform Committee noted that those who provided evidence overwhelmingly took the view that oral wills “…would create uncertainty and give rise to litigation because of the difficulties of proving and interpreting oral statements.”85 We agree with that conclusion. Our provisional proposals for reform are therefore confined to considering the formality requirements that should apply for a valid will to be executed in writing.

    
    

48. If an oral will were only to be valid if recorded, that is, if an “audio” will were to be valid, this would be go some way towards mitigating the concerns about the function of formalities expressed above. A recording of an oral will would provide evidence, could offer protection if witnesses were required and the act of recording may allow testators more opportunity to use a particular form of words (the channelling function) and cause them to think more deeply about what they are actually doing (the cautionary function).

    
    

49. We take the view, however, that reform should not seek to enable the validity of wills made in an oral form, whether recorded or not. We do not seek to change the current position regarding the validity of a will made orally by a privileged testator, nor do we seek to preclude any discussion of the reform of that privilege.

    
    

50. In Chapter 6 we consider whether video wills should be permitted as a form of electronic will. Whilst there is some similarity between audio wills and video wills, we take the view that audio wills provide less protection against fraud. A video will has the advantage of capturing two recordings (visual and audio) while an audio recording captures only one.

    
    

    
    

    
    

    85 Twenty Second Report of the Law Reform Committee on The Making and Revocation of Wills (1980) Cmnd 7902, pp 8 and 9.

    Signature of a will on behalf of the testator – a new restriction?

51. As we have noted, it is possible for a testator validly to execute the will by directing that it be signed by another person in his presence and at his direction. There is no restriction on who that other person can be and the possibility that the person signing on the testator’s behalf could be a beneficiary, or even the sole beneficiary, is a cause for concern. It appears incongruous that, while section 15 of the 1837 Act ensures that a witness to a will cannot benefit from the will, no such limitation is imposed on a person who signs a will on behalf of a testator. In the case of Barrett v Bem, Mr Justice Vos found that section 15 of the 1837 Act could not be interpreted to apply to someone signing at the direction of the testator. He took the view that those circumstances would be “suspicious”, justifying the court’s careful examination of the evidence adduced by the propounder in order to ensure that the will did indeed express the true will of the deceased.86 However, he thought that there was a need for legislation to remove the possibility of a beneficiary executing a will in his or her own favour.87

    
    

52. In the Court of Appeal Lord Justice Lewison agreed saying:

    
    

    I echo the judge’s view that it is plainly undesirable that beneficiaries should be permitted to execute a will in their own favour in any capacity; and that Parliament should consider changing the law to ensure that this cannot happen in the future.88

    
    

53. We note that Barrett is the only reported case in which the issue has arisen of a person signing a will on behalf of a testator and benefitting from the will. Notwithstanding, we share the Court of Appeal’s concern. We consider that the risk of undue influence or fraud is disproportionately high when weighed against the (not very great) difficulty of finding someone who is not a beneficiary to sign on the testator’s behalf.

    
    

54. We provisionally consider that a person who signs a will in the testator’s presence and at his or her direction under section 9(b) of the 1837 Act should be placed in the same position as a witness and that the same consequence should follow. That means that in such a case, although the will would remain valid, a gift to the person who signed, or to his or her spouse or civil partner, would be void.

    
    

55. We consider below whether gifts made to the cohabitee or to other family members of a witness should also be void. We anticipate that any change that is made in respect of witnesses would be replicated in respect of those who sign on behalf of the testator. That means that, if a gift to the cohabitee (or any other family member) of a witness is made void, then a gift to the cohabitee (or other family member) of a person who signs on behalf of a testator should also be void.

    
    

    
    

    86 Barrett v Bem [2011] EWHC 1247 (Ch); [2011] 3 WLR 1193 at [99]. Mr Justice Vos thought that in these circumstances the rule regarding “suspicious circumstances” should apply with additional force. See the chapter on undue influence and knowledge and approval for further discussion of wills made in “suspicious circumstances”.

    87 Barrett v Bem [2011] EWHC 1247 (Ch); [2011] 3 WLR 1193 at [02].

    88 Barrett v Bem [2012] EWCA Civ 52; [2012] Ch 573 at [144].

    
    

    
    

    
    

    
    

    Reforms relating to witnesses

56. As we have indicated in our discussion of the current law, we see no need for reform of the requirement that there be two witnesses present at the same time, or of the ability of a child to be a witness to a will.89 In this part of the chapter we consider whether two aspects of the law relating to witnessing a will should be reformed:

    
    

    1. The rules relating to the invalidity of gifts to witnesses; and

       
       

    2. The requirement for witnesses to attest a will.

       
       

       We then consider whether there are circumstances in which it should be possible for a valid will to be executed without the need for it to be witnessed.

       
       

       The invalidity of gifts to witnesses

57. As we have seen, under section 15 of the 1837 Act a gift made to a witness to a will and to his or her spouse or civil partner is void, although the will otherwise remains

    
    

    
    

    89 See para 5.22 above.

    valid.90 This rule has been abolished in some Australian states and, in others, does not apply to deprive gifts to the spouses of those who witness wills.91 We do not favour abolition of the rule given that it provides protection for the testator against the self- interested witness who would otherwise falsely affirm the valid execution of a will under which he or she would receive a benefit. We also share the conclusion of the Law Reform Committee in its 1980 report that to reform the rule as to remove the spouses of witnesses from its scope “would open greatly the possibilities for abuse”.92

    
    

58. The concerns of conflict of interest and abuse addressed by the rule are arguably equally present where the witness’s cohabitant, parent or sibling stands to inherit under a will. In order to address the problem more effectively, and in the interests of equal treatment, the rule could be extended to encompass those groups.

    
    

59. In particular, we see some force in the argument that there is little rationale for treating cohabitants of witnesses differently from witnesses’ spouses or civil partners. A significant percentage of the adult population now cohabits without marrying.93 The possibility that a witness’s cohabitant might benefit from a will is therefore significantly more likely to occur now than in the nineteenth century. Extending the rule so that a gift to a witness’s cohabitant is void has the practical difficulty of defining who constitutes a cohabitant. However, there are existing definitions of a ‘cohabitant’ in statute which might be adopted. For example, under the Inheritance (Provision for Family and Dependants) Act 1975 a cohabitant is defined as a person who, for the period of two years ending with the death of the deceased, was living in the same household as the deceased and as the deceased’s husband, wife or civil partner.94 However, we favour a more inclusive test than under the 1975 Act, driven by the desire to prevent fraud. We are therefore of the view that ‘cohabitant’ should be defined as a person who lived in the same household as the deceased and as the deceased’s husband, wife or civil partner at the time the will was executed.

    
    

    
    

    90 Wills Act 1968, s 1 provides that, where a will would be duly executed without the attestation of any persons to whom (or to whose spouse) a gift is made then the attestation of those persons shall be disregarded for the purposes of s 15.This means that if there are more than two witnesses to a will, and at least two witnesses (or their spouses) are not beneficiaries, a witness (or his or her spouse) who is a beneficiary can retain their benefit under the will.

    91 South Australia, Australian Capital Territory and Victoria have all abolished the rule. See N Peart “Testamentary Formalities in Australia and New Zealand” in R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 344.

    92 Twenty Second Report of the Law Reform Committee on The Making and Revocation of Wills (1980) Cmnd 7902, p 7.

    93 The population of those aged 16 and over who are “cohabiting, never married or civil partnered” increased from 6.8% in 2002 to 9.5% in 2015: Office of National Statistics, Population estimates by marital status and living arrangements, England and Wales: 2002 to 2015, 13 July 2016. https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/bulleti ns/populationestimatesbymaritalstatusandlivingarrangements/2002to2015 (last visited 14 June 2017).

    94 Inheritance (Provision for Family and Dependants) Act 1975, ss 1A and 1B.

    
    

    
    

    
    

60. In some Australian jurisdictions, rules prohibiting gifts to a witness have been reformed, so that the gift is valid if the persons who would otherwise benefit consent in writing or the court is satisfied that the testator knew and approved the gift and the gift was made voluntarily.95

    
    

61. The potential disadvantage of an exception of this kind is that it may weaken the protection afforded to the testator as the witness who would otherwise be prevented from benefitting by the application of section 15 may be able to convince the court that the testator (whose own evidence is not available) did know and approve of the gift, and make it voluntarily. The discretion afforded by the rule may also increase litigation over wills. Nevertheless, we acknowledge that the rule may result in a testator’s wishes being defeated, particularly where a will is prepared without professional advice. The rationale of introducing a discretion so as best to give effect to a testator’s wishes is similar to that underpinning our provisional proposal to introduce a dispensing power.96

    
    

    
    

    Is the requirement for witnesses to “attest” necessary?

62. We have explained above that the 1837 Act requires the witnesses to attest the will, except where the witness acknowledges his or her signature in the testator’s presence.97 However, the purpose of the requirement is not clear. The Court of Appeal

    
    

    
    

    95 Succession Act 2006 (NSW), s 10(3); Wills Act 2000 (NT), s 12(2); Wills Act 2008 (Tas), s 4(2); Succession Act 1981 (Qld), s 11(3); cited in N Peart “Testamentary Formalities in Australia and New Zealand” in R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 344.

    96 See paras 5.81 to 5.105 below.

    97 See para 5.31 above.

    has said that “as a matter of statutory construction it is plainly correct that meaning over and above “signs the will” must be given to the words “attests and…”.98 It has also said that the intention of the witness is not immaterial when signing the will and refers to the factual question of a witness’s intention to attest.99

    
    

63. The statute already provides that the testator must have made or acknowledged his signature in the presence of the two witnesses and that the witnesses must then sign the will. The witnesses will therefore have observed the testator’s signature or his or her acknowledgment of that signature and be signing (or acknowledging their signature) to that effect.100

    
    

64. By comparison, the requirement to attest also appears in the Law of Property (Miscellaneous Provisions) Act 1989, which provides that an instrument is validly executed as a deed if it is signed “…in the presence of a witness who attests the signature”.101 The 1989 Act does not contain a definition of “attest” but in the Law Commission’s report that preceded this Act, the Commission had taken the view that “attestation… includes the subscription of the witness’ signature following a statement (attestation clause) that the document was signed or executed in his presence”.102 The Commission’s view appears to explain why the 1989 Act contains no explicit requirement that the witness should sign the deed to record their attestation of the signature of a party to the deed.103 By contrast, section 9 of the 1837 Act, as we have seen, does include a requirement for the witness to sign (or to acknowledge his or her signature).

    
    

65. If “attestation” does not require anything more than the witnesses being present and bearing witness to the testator’s signature (or his or her acknowledgement of the signature) then the requirement for the witness to “attest” appears redundant.104

    
    

66. We consider that the current law relating to the requirement of attestation is in need of reform. The requirement should either be removed or, if retained, then it should apply in all cases and be clearly defined. The fact that attestation is not required when a witness acknowledges his or her signature in the presence of the testator (instead of signing in the testator’s presence) might indicate a connection between attestation and acknowledgement. However, as we have noted above, the Court of Appeal appeared to link attestation to the witnesses’ intention. Therefore, if retained, then we suggest that

    
    

    
    

    98 Sherrington v Sherrington [2005] EWCA Civ 326, [2005] WTLR 587 at [37].

    99 Above, at [38] and [39].

    100 We note that art 5(3) of the annex to the Washington Convention on International Wills—reproduced in sch 2, Administration of Justice Act 1982 which is not in force—says “The witnesses and the authorized person shall there and then attest the will by signing in the presence of the testator” (our emphasis).

    101 S 1(3)(a)(i), Law of Property (Miscellaneous Provisions) Act 1989.

    102 Deeds and Escrows (1987) Law Com No 163.

    103 M Dray “Deeds speak louder than words. Attesting time for deeds?” [2013] 77 The Conveyancer & Property Lawyer, Issue 4, 298 at 301.

    104 We note the view of Professor Kerridge that that “Once all the other provisions concerned with signatures and timing have been complied with, it does seem hard to see how there is room to find fault with the execution of a will solely on the ground that “attestation” is somehow lacking.” See R Kerridge (assisted by A H R Brierley), Parry and Kerridge: the Law of Succession (13th ed 2016) (2016) p 54.

    in order for a will to be attested the witness must sign the will and intend that his or her signature serve as clear evidence of the authenticity of the testator’s signature.105

    
    

    
    

    
    

    Holograph wills – wills without witnesses

67. A holograph106 will is a will written and signed in the testator’s hand. Holograph wills have no special status in English law because the formal requirements in section 9 of the 1837 Act apply equally to handwritten and other wills regardless of who has drafted them. However, unwitnessed holograph wills are recognised as valid in a number of other jurisdictions.107

    
    

68. In some jurisdictions, therefore, holograph wills form a distinct type of will, which is valid without being witnessed. They are, for example, the most popular type of will executed in Germany, Austria and Switzerland.108 Generally, holograph wills are recognised only in civil jurisdictions. Australia, as another common law jurisdiction, does not recognise holograph wills as a specific class but they may be recognised under the dispensing powers found in the legislation of all the Australian states.109 However, the US Uniform

    
    

    
    

    105 We draw on the dictionary definition of attest – to “provide or serve as clear evidence of”: Oxford Dictionary of English (3rd ed 2010) p 102.

    106 ‘Holograph’ meaning ‘wholly written’.

    107 See K G C Reid, MJ De Waal, and R Zimmermann, “Testamentary Formalities in Historical and

    Comparative Perspective” in R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities

    (2011) p 441 to 443.

    108 K G C Reid, MJ De Waal, and R Zimmermann, “Testamentary Formalities in Historical and Comparative Perspective” in R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 439.

    109 See para 5.81 and following below.

    Probate Code110 makes provision for holograph wills111 and they are recognised in approximately half of the states in the US, albeit often because of the influence of civil law concepts in the US.112

    
    

69. The concept of a holograph will has evolved and adapted. Many jurisdictions have relaxed the requirement that the entire document be handwritten and now recognise wills that are “materially” in the testator’s hand.113 This relaxation has opened the door to holograph wills made using store-bought will packs.114 Although the concept of a holograph will is flexible, almost every jurisdiction that recognises them insists that some part of the body of the will is in the testator’s hand.

    
    

70. The law in Scotland goes further, and allows “subscribed” wills. A will is valid under Scottish law if it is signed by the testator at the end of the document, without any requirement for the will to be written in the testator’s own hand.115 The same approach to formalities is taken, however, to deeds and conveyancing documents that are used to transfer property. To take the same approach to wills in English law would be to apply markedly different (and lower) formal requirements to wills than are generally required to transfer property. Further, although valid, a subscribed will does not enjoy the same “probative” value as a witnessed will; only the latter benefits from a presumption of authenticity.116

    
    

71. Holograph wills do carry some advantages. The absence of the need for witnesses provides a straightforward means for writing a will that is appropriate for simple wills and small estates. Holograph wills are particularly suited for testators who wish to execute a homemade will.117 Wills may be safely executed without instructions or professional supervision.

    
    

72. While removing the requirement for witnesses might be viewed as reducing the protective function witnesses provide against fraud, the balance might be considered to be redressed by the requirement that the will is written in the testator’s own hand.118 Whilst that may provide some safeguard against fraud, however, a requirement of handwriting does not appear to protect against undue influence. Further, as we have

    
    

    
    

    
    

    110 A legislative provision promulgated by the US Uniform Law Commission, designed to be enacted in any state in the US, in order to harmonise probate law between US states.

    111 For example, Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371.

    112 R Scalise Jr, “Testamentary Formalities in the United States of America” in in K G C Reid, MJ De Waal, and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 370.

    113 See, for example, s 2-502(b) of the Uniform Probate Code (USA).

    114 K G C Reid, MJ De Waal and R Zimmermann, “Testamentary Formalities in Historical and Comparative Perspective” in K G C Reid, MJ De Waal and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 443.

    115 K G C Reid, “Testamentary Formalities in Scotland” in in K G C Reid, MJ De Waal and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 418.

    116 Requirements of Writing (Scotland) Act 1995, s 3.

    117 K G C Reid, MJ De Waal, and R Zimmermann, “Testamentary Formalities in Historical and Comparative Perspective” in R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 447

    118 W Pintens, “Testamentary Formalities in France and Belgium” in K G C Reid, MJ De Waal, and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 57.

    noted above, some jurisdictions have moved away from a strict requirement that a holograph will is handwritten.

    
    

73. Removing the requirement for witnesses also appears to weaken the channelling and cautionary purposes of the formalities requirements.119 If making a will is as simple as writing and signing a document, then a testator may not appreciate that he or she has written a legally valid will.

    
    

74. While we see the advantages in provision for holograph wills, we are not currently persuaded that these outweigh the risks. In particular, we are mindful of the simplicity and certainty offered by maintaining a single set of formality requirements for wills (other than privileged wills). We are concerned that the provision of two separate means of executing a valid will would be a source of confusion and could increase the amount of litigation challenging the validity of wills.

    
    

    
    

    Privileged wills

75. As we have explained, specific provision is made for soldiers and members of the naval or marine forces in actual military service and for mariners and seamen at sea to make a privileged will.120 Privileged wills are exempt from the formality requirements contained in the 1837 Act. A privileged will, for example, may be oral. A number of rationales may be put forward for privileged wills. First, those on military service face a specific risk of death. Secondly, soldiers are “not in a position to make [their wills] in the form required of persons in ordinary circumstances” as they lack access to the necessary legal services and advice.121 Finally, but perhaps most importantly, provision for privileged wills is consistent with the principles that underpin the Armed Forces Covenant, which provides that “special consideration is appropriate in some cases, especially for those who have given most such as the injured and the bereaved”.122

    
    

76. Commentators have questioned whether some of the assumptions underpinning privileged wills remain valid in modern times.123 The privilege has also been considered

    
    

    
    

    119 R Scalise Jr, “Testamentary Formalities in the United States of America” in in K G C Reid, MJ De Waal, and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 370.

    120 See para 5.41 above.

    121 In the goods of Hiscock [1901] P 78 at p 80.

    122 https://www.gov.uk/government/publications/2010-to-2015-government-policy-armed-forces-covenant/2010- to-2015-government-policy-armed-forces-covenant.

    123 P Critchley, “Privileged wills and the testamentary formalities: a time to die?” [1999] Cambridge Law Journal 49 at p 55; R Kerridge, “Testamentary Formalities in England and Wales” in K G C Reid, MJ De Waal, and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 324.

    to be both under- and over-inclusive. For example, drone pilots engaging in warfare thousands of miles from the battlefield may be covered by the privilege, whilst civilians engaged in dangerous occupations (such as firefighters) are not.124 Nor is the privilege available to civilians who find themselves in danger of imminent death; for example, following an accident.125 There is also a risk that privileged wills undermine the important functions served by formalities. Critchley gives the example of an oral privileged will which consisted of the oral statement by a soldier “If I don’t make it, make sure Anne gets all my stuff”.126 The will was ambiguous; it might be interpreted as the soldier leaving Anne (his fiancée) only his personal effects or, instead, as leaving Anne his entire estate. Furthermore it superseded a written will by which the soldier left his whole estate to his mother. Both of those features may indicate that the will was (understandably) not carefully thought out by the soldier; he may have acted differently were his attention drawn to the seriousness of the act.

    
    

77. Notwithstanding these concerns, there is little evidence that privileged wills create difficulties in practice. We understand from initial discussions with the Ministry of Defence that disputes over wills made by service personnel are rare. We have been told that around 64% of service personnel have made a will – a higher percentage than that for the population as a whole. Service personnel are provided with a simple form to complete which is a formally executed will under the 1837 Act.127 The form advises personnel to seek professional advice, particularly where the estate might be large or complex.

    
    

78. We note the criticism that has been directed at privileged wills.128 We provisionally consider that the strongest justification for the maintenance of the privilege lies in its connection to the Armed Forces Covenant. That being the case, however, (and subject to one exception, which we discuss below) we consider that the privilege should be confined to those covered by the covenant; that is, to those serving in the British armed forces. A change to the scope of the privilege in this way would exclude its operation, for example, to merchant seamen and women, and to those serving other than in the British armed forces.129

    
    

79. We explained above that the operation of the privilege has been considered to be both under- and over-inclusive. If the privilege is confined to armed forces personnel, then we do not consider that over-inclusivity is a concern. There would be practical difficulties

    
    

    
    

    124 See the discussion by M West, “Modern privileges” (2016) Trust Quarterly Review (online) in which he concludes that such drone operators would currently be able to make a privileged will.

    125 See P Critchley, “Privileged wills and the testamentary formalities: a time to die?” [1999] Cambridge Law Journal 49 at pp 56 and 57.

    126 Re Jones [1981] Fam 7.

    127 MOD Form 106.

    128 See R Kerridge (assisted by A H R Brierley), Parry and Kerridge: the Law of Succession (13th ed 2016) p 62; P Critchley, “Privileged wills and the testamentary formalities: a time to die?” [1999] Cambridge Law Journal 49 citing M Davey, “The Making and Revocation of Wills” [1980] Conveyancer and Property Lawyer 64; A G Lang, “Privileged Will – A Dangerous Anachronism?” (1985) 8 University of Tasmania Law Review 166; G Cole, “How Active is Actual Military Service?” [1982] Conveyancer and Property Lawyer 185; and P Bailey, “A Soldier's Privileged Will in Northern Ireland” (1982) 33 Northern Ireland Legal Quarterly 53.

    129 On the possible application of the privilege to foreign armed forces, see M West, “Modern privileges” (2016)

    Trust Quarterly Review (online).

    in defining active service in such a way as to only capture situations in which personnel are in imminent danger. We consider (particularly given the infrequency with which the privilege appears to be relied upon) that it is preferable for the privilege to be over- inclusive in this minor respect than to risk drawing the privilege too narrowly.

    
    

80. There is one respect in which we provisionally consider the privilege could usefully be extended beyond armed forces personnel. At present, contractors and civilians who are deployed in combat zones to work alongside armed forces personnel do not benefit from the privilege. We consider that their exclusion creates anomalous results. It means, for example, that where a civilian contractor and soldier are travelling together in a combat zone, the soldier alone benefits from the privilege even though both are equally in danger. We consider that this anomaly should be removed by an expansion of the privilege. Further, we consider that such an expansion can be achieved, without creating uncertainty as to who benefits from the privilege, by extending it to apply to civilians who are subject to service discipline within schedule 15 of the Armed Forces Act 2006.

    
    

    
    

    A dispensing power

81. A number of jurisdictions130 have so-called “dispensing powers” which enable a court to recognise a will as valid even though formalities have not been complied with.131 In general terms, dispensing powers may take two forms: powers that focus on the extent to which the formality rules have been complied with; and powers that focus on whether the (invalid) will represents the genuine intentions of the testator.

    
    

82. Substantial compliance doctrines allow strict formality requirements to be dispensed with where a court finds that the rules have been followed to a sufficient extent for it to be satisfied that the purpose of the rules has in fact been fulfilled.132 Dispensing powers that focus on the testator’s intention enable the court to recognise a will as being valid

    
    

    
    

    130 Including all of the Australian states, New Zealand, a number of states and provinces within the USA and Canada, and South Africa.

    131 For the sake of convenience, our discussion refers to a dispensing power being used to recognise a will notwithstanding formal defects in its execution. However, it is important to note that a dispensing power would apply equally to documents that revoke, revive or alter a will.

    132 J Langbein, “Substantial compliance with the Wills Act” (1975) 88:3 Harvard Law Review 489 at p 526.

    despite any degree non-compliance with formalities when it is satisfied that doing so will give effect to the testator’s intentions.133

    
    

83. This section focuses on intention-based dispensing powers. We prefer that approach for two main reasons. First, the policy aim of the measure is to give greater effect to a testator’s intentions. Therefore, we do not believe that a dispensing power should target compliance with formalities when it could reasonably target intention more directly. Secondly, the history of Queensland’s substantive compliance doctrine is a cautionary tale. The doctrine was enacted in 1981.134 However, it was construed narrowly and its effect was limited. The Queensland provision was deemed a “flop” by Professor Langbein in a much cited article and most dispensing powers enacted since have been intention-based.135 Queensland abandoned substantial compliance in favour of an intention-based provision in 2006.

    
    

    The usefulness of a dispensing power – some examples

84. In order to appreciate the potential effects of a dispensing power, it is helpful to consider the types of case in which a dispensing power is most likely to be used. While a dispensing power could be calibrated in various ways, the following examples capture the difficult cases that dispensing powers are enacted to address.

    
    

    1. A dispensing power would address cases in which the validity of a will turns on a minor technical matter. For example, in Re Groffman, the judge was “perfectly satisfied that that document was intended by the deceased to be executed as his will and that its contents represent his testamentary intentions”. However, the will was invalid because despite being signed by two witnesses, the witnesses acted separately rather than in each other’s presence.136 Similarly, in Re Colling a will was invalid because one of the witnesses, a nurse, was found to have left the room before the testator had completed his signature.137

       
       

    2. A dispensing power has also proved useful where the original copy of a will has been lost. For example, in the New Jersey case of Ehrlich the testator was a trusts and estates lawyer who died in 2009.138 After his death, the only testamentary document that could be found was a copy of a will. That copy was unsigned but a note on the copy indicated that an original had been sent to a friend. The friend pre-deceased Mr Ehrlich and the original was never found. The copied document almost certainly represented Mr Ehrlich’s wishes. However, being a copy, it was never signed or witnessed. The copy was not a formally valid will. The court therefore relied on the ‘harmless error’ provision (an intention-

       
       

       
       

       133 Wills Act 1936, 12(2) (South Australia).

       134 Queensland Succession Act 1981, s 9(a).

       135 See J Langbein “Excusing harmless errors in the execution of wills: a report on Australia’s tranquil revolution in probate law” [1987] 1 Columbia Law Review 1 and Scottish Law Commission, Report on Succession (1990) Scot Law Com No 124, p 41. We also note that the substantial compliance doctrine in Queensland has been abandoned in favour of an intention-based provision (Succession Act 1981 (QLD), s 18).

       136 [1969] 1 WLR 733.

       137 [1972] 1 WLR 1440.

       138 In re Estate of Ehrlich, 47 A 3d 12.

       based dispensing power) in New Jersey law to treat the copy of Mr Ehrlich’s will as if it had been executed in compliance with the ordinary formality rules.

       
       

    3. The intentions of seriously ill testators have been given fruition by a dispensing power. For example, in Newman v Brinkgreve the testator was seriously ill in hospital. He wrote instructions to his solicitor to amend his will on the back of a medical form. When it became clear that time was running short for him to execute his will, the testator asked a nurse to witness the document, saying

       
       

       I want you to witness this. My mind is strong and I know what I'm doing. I want to talk to my solicitor but he is not here, and I want to make sure this gets witnessed. I'm waiting for the social worker too. This is really important.

       
       

       The evidence was sufficient to convince the court that the testator had intended the note written on the back of the medical form to constitute a codicil to his will and it was treated as such.139

       
       

    4. The power to dispense with formalities has also been applied to suicide notes that contain testamentary dispositions.140 For example, a note that began “Mum, you are the beneficiary of my estate” was held to be an expression of testamentary intentions and treated as a will.141

       
       

       A dispensing power and rectification

85. While there is no dispensing power in the law of England and Wales, there is a statutory power to rectify wills142 which in some cases may produce results that could otherwise be obtained by a dispensing power. For example, dispensing powers in other jurisdictions might be used to deal with the problem of “switched” wills, where two testators making mirror wills sign in each other’s will in error. That problem was recently addressed by the Supreme Court, using the statutory power of rectification, in the case of Marley v Rawlings.143 Hence, there is a degree of overlap between dispensing powers and a power to rectify wills. But this overlap is not complete. As one academic has commented in relation to the power to rectify a will:

    
    

    Yet what would certainly not be possible under any circumstances is for the testator’s missing signature to be supplied via rectification. On no reading of Lord Neuberger’s judgment does Marley v Rawlings introduce anything like a full-blown ‘judicial dispensing power’ or a ‘substantial compliance’ doctrine.144

    
    

    
    

    139 Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371.

    140 For example MacDonald v MacDonald [2012] NSWSC 1376; Public Trustee v Alexander - Estate of Alexander [2008] NSWSC 1272.

    141 MacDonald v MacDonald [2012] NSWSC 1376.

    142 Administration of Justice Act 1982, s 20.

    143 Marley v Rawlings [2014] UKSC 2; [2015] AC 129.

    144 B Häcker “What’s in a Will?“ in B Häcker and C Mitchell (eds) Current Issues in Succession Law (2016) p 131 at p 153.

    Should a dispensing power be introduced?

86. The strongest argument in favour of a dispensing power is that it helps ensure that a testator’s intentions are given effect. In this respect, a dispensing power reflects the idea that formality requirements are “a means to an end and not an end in themselves.”145 Any risks involved in removing the need for formalities to be complied with are mitigated by the fact that the operation of a dispensing power would be subject to judicial control. Indeed, an assessment of evidence to establish whether a document or record in fact represents the testator’s intention may be said to offer more protection than adherence to a particular form. Against these advantages is the potential risk of increased litigation. In 1980 the Law Reform Committee concluded that a dispensing power “could lead to litigation, expense and delay, often in cases where it could least be afforded, for it is the home-made wills which most often go wrong.”146

    
    

87. The Committee was writing at a time when statutory dispensing powers were in their infancy and we are now in a position to learn from significant experience in other jurisdictions. The widespread adoption of dispensing powers suggests that those powers can be, and are being, operated in a sufficiently certain, efficient and cost- effective manner. We also note that litigation brought about by the introduction of a dispensing power would be appropriate. The purpose of the power (and consequent litigation) would be to give effect to a testator’s intentions and to avoid the unsatisfactory consequence of the testator’s intentions being displaced by intestacy or resort to an earlier will that the testator no longer wanted. A dispensing power would have the positive effect of shifting the focus of litigation from upholding formal rules to upholding testamentary intention.

    
    

88. Given the important role that a dispensing power can play in upholding the intentions of testators, and therefore testamentary freedom, and the fact that the main criticisms are now answerable, we think it right to propose provisionally that a dispensing power be introduced in England and Wales.

    
    

89. Nevertheless, we note two reasons to be cautious about reform in this area of law. First, dispensing powers have not been widely discussed in the UK and in preliminary consultations, stakeholders have expressed both positive and negative views. We hope that this Consultation Paper will stimulate a productive discussion of this issue. We note that in the United States, the introduction of an intention-based dispensing power by way of a harmless error provision in the Uniform Probate Code has prompted substantial ongoing academic debate.147

    
    

90. Secondly, there is a lack of evidence about the extent to which wills currently fail for non-compliance with formalities in England and Wales. Where it is apparent that a will

    
    

    
    

    
    

    145 Miller “Substantial compliance and the Execution of Wills” 36 ICLQ (1987) 559 at 587, cited in Scottish Law Commission, (1990) Report on Succession Scot Law Com No 124 p 41.

    146 Law Reform Committee, Twenty Second Report (The Making and Revocation of Wills) (1980) Cmnd 7902, p 4.

    147 See J Baron, “Irresolute Testators, Clear and Convincing Wills Law” (2016) 73 Washington and Lee Law Review 3; M Glover, “In Defense of the Harmless Error Rule's Clear and Convincing Evidence Standard: A Response to Professor Baron” (2016) 73 Washington & Lee Law Review Online 289; P Wendel, “Setting the Record Straight: The 'Flexible Strict Compliance' Approach to the Wills Act Formalities”, (forthcoming) Oregon Law Review, Vol. 95, No. 2; and D Horton, “Tomorrow’s Inheritance: The Frontiers of Estate Planning Formalism” (forthcoming) Boston College Law Review, Vol. 58.

    is invalid, it may not be submitted for probate and so there will be no record of the will. However, in a survey conducted for us by the Association of Contentious Trust and Probate Specialists, practitioners told us that “inadvertent failure to observe formalities required for due execution” was one of the main reasons for probate and wills disputes in which they had been involved over the last three years.148 This survey suggests a dispensing power would be useful. It would provide a clear avenue for such disputes to be resolved. We would, however, like to hear evidence on how common it is for a will to be invalid for non-compliance with formalities.

    
    

    
    

91. One of the main concerns that has been expressed by stakeholders in preliminary consultations is that a dispensing power would be uncertain. There may be some merit in that view. However, it is important to recognise that dispensing powers do not involve a broad, unstructured judicial power. In order to demonstrate this, and to address concern about the uncertainty of dispensing powers, we outline below the various ways in which an intention-based dispensing power could be tailored.

    
    

    How should a dispensing power be drawn?

92. It is necessary to consider how a dispensing power would be drawn were such a power to be adopted in this jurisdiction. We think that is it necessary to consider five aspects of a potential dispensing power.

    
    

    1. Who should exercise the power?

       
       

    2. What should the scope of the dispensing power be?

       
       

    3. What standard of proof should apply?

       
       

    4. Should the provision operate retrospectively?

       
       

    5. What surrounding facts should a court be permitted to determine conclusively?

       
       

       Who should exercise the power?

93. It appears that every jurisdiction with a dispensing power confers that power upon its courts. However, in Australia the courts have delegated their powers, so that, in straightforward cases, a probate registrar may grant probate to a formally invalid will. That contrasts with the position in South Africa where a court hearing is required for an application to admit to probate a formally invalid will even when those adversely affected

    
    

    
    

    148 From a survey of members of the Association of Contentious Trust and Probate Specialists conducted in 2015, which received 97 responses.

    support the application.149 We take the view that, were a dispensing power to be introduced in this jurisdiction, it would be for the court to exercise that power. We consider that the court is best placed to assess the facts in an individual case and to set the parameters for the operation of the dispensing power. We would expect applications under a dispensing power provision generally to be made in the Chancery Division of the High Court but also for it to be possible to issue a claim in the County Court where the value of the deceased’s estate does not exceed £350,000.150 Were a dispensing power shown to work simply and effectively, the jurisdiction to exercise the power could be delegated to the Probate Service in certain cases.

    
    

    The scope of the power

94. A variety of approaches are taken in other jurisdictions to the scope of a dispensing power. The power is sometimes limited to written documents,151 or even to particular types of written documents.152 In contrast, in other jurisdictions, dispensing powers have been used to admit video wills to probate.153 In considering the scope of a dispensing power, we believe that the key issues are whether the power should apply to:

    
    

    1. electronic documents;

       
       

    2. audio and video recordings; and

       
       

    3. purely oral statements.

       
       

95. Our tentative initial view is that the scope of any dispensing provision in English law should be drawn widely. Were a dispensing power to be introduced, there are strong arguments that it should apply not only to traditional written documents, but also where testators express their testamentary intentions in an electronic format, as well as in an audio or audio-visual recording. Those records are all potentially strong evidence of the testator’s intentions and, as we have seen, upholding the testator’s intentions is the strongest argument for introducing a dispensing power.

    
    

96. That said, we note that the potential recognition of electronic wills via a dispensing power is a double-edged sword. On the one hand, it seems essential that the power be applicable to electronic documents. Testators who do not follow the formality rules – either through ignorance of them or necessity – are increasingly likely to use electronic means. For example, a person who is seriously ill in hospital may have more immediate access to a tablet or smartphone than to a pen and paper, and may be more able to speak than to write. On the other hand, the potential recognition of electronic documents could provide a treasure trove for dissatisfied relatives. They may be tempted to sift

    
    

    
    

    149 K G C Reid, MJ De Waal, and R Zimmermann, “Testamentary Formalities in Historical and Comparative Perspective” in K G C Reid, MJ De Waal, and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 466.

    150 By analogy with s 23 of the County Courts Act 1984 and the County Court Jurisdiction Order 2014 which, read together,stipulate a £350 000 county court limit for the administration of the estate of a deceased person.

    151 Uniform Probate Code, s 2-503.

    152 Ohio Rev Code Ann. S 2107.24. Note that this does not exclude electronic written documents, but does exclude oral and video wills which cannot be signed (although the media containing them might be signed).

    153 See Chapter 6, particularly para 6.98.

    through a huge number of texts, emails and other records in order to find one that could be put forward as a will on the basis of a dispensing power. In that way, the large number of electronic documents that we store on our phones, tablets and computers may open up a variety of avenues by which probate could become both expensive and contentious.154 While there are arguments on both sides, we take the view that, on balance, electronic documents and audio and audio-visual recordings should fall within the scope of the dispensing power.

    
    

97. It might also be thought that there is also a risk that the potential recognition of electronic wills could supersede a proposal that we make elsewhere in this Consultation Paper. In the chapter on electronic wills we provisionally propose that an enabling power should be introduced that will allow electronic wills to be recognised in the future.155 This would allow the Government to bring forward secondary legislation to enable the use of electronic wills at a time when it is feasible to do so. At first blush, it may seem that a dispensing power would make the enabling power ineffective. However, the function of the enabling power is to allow electronic will-making as a matter of course when the time is right. The function of the dispensing power is to recognise informal wills (possibly electronic) retrospectively on a case by case basis.

    
    

98. We do not consider that the dispensing power should be available where the only evidence of a testator’s intention is an unrecorded oral statement. We agree with the view of the Scottish Law Commission that “there would be too much scope for dispute as to the content of oral expressions of intention and too much scope for fraud”.156

    
    

99. Oral wills would continue to be available only in respect of privileged wills, where the specific policy intention justifies admitting oral evidence.

    
    

    What standard of proof should apply?

100. Again, this is a matter on which different approaches have been taken in other jurisdictions. When a dispensing provision was introduced in South Australia it provided that the court had to be satisfied that there could be “no reasonable doubt that the deceased intended the document to constitute his will”. On its face, that provision adopted the criminal standard. However, the courts subsequently weakened the test to approximate the civil standard.157 The Uniform Probate Code attempts to provide a standard somewhere between the ordinary criminal and civil standards by requiring the proponent of the document to discharge their burden by clear and convincing evidence.158

     
     

     
     

     154 D Horton, “Tomorrow’s Inheritance: The Frontiers of Estate Planning Formalism” (forthcoming) Boston College Law Review, Vol. 58.

     155 Chapter 6.

     156 Report on Succession (1990) Scot Law Com No 124 p 43. The Commission, perhaps, because of the time as which it was writing, allowed that this objection might not stand for wills recorded on “tape” or “video” but were not aware that there was a problem in relation to such wills and so concluded that the issue could be considered at a later date if problems emerged.

     157 N Peart, “Testamentary Formalities in Australia and New Zealand” in K G C Reid, MJ De Waal, and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) p 349.

     158 Arguably the courts have interpreted this provision permissively. See J Baron, “Irresolute Testators, Clear and Convincing Wills Law” (2016) 73 Washington and Lee Law Review 3.

101. We provisionally take the view that the ordinary civil standard of proof should apply to a dispensing power. To apply the criminal standard could have the effect of substantially limiting the utility of such a power by making it potentially very difficult to prove that the document or record represented the deceased’s intentions. The use of the criminal standard could therefore negatively impact on the policy intention behind a dispensing power of upholding the deceased’s testamentary intentions. In addition, it would be inconsistent to apply the criminal standard of proof to this issue where it does not apply in respect of other issues that concern a will,159 for example, a testator’s capacity to make a will. As regards adopting a “clear and convincing evidence” standard, we do not see the value of introducing a new standard of proof when the civil standard is appropriate.160

     
     

     Should the provision operate retrospectively?

102. In order to create certainty as to when the dispensing power should be used we suggest that the clearest approach to adopt would be for the power to apply to a record or document of the deceased’s testamentary intentions where the deceased dies after the coming into force of the relevant legislative provision. We do not think that it would be viable for a dispensing power to be available depending on whether a document or record was created after the date that the provision came into force. The date of the document may be difficult to discover (without further evidence) in comparison to the usually straightforward question of the date of a person’s death.161 So, the power could operate “retrospectively” in the sense that it might be used to admit to probate a document created before it came into force.162

     
     

103. This approach does not violate the principles that inform the common law presumption against retrospective laws.163 In short, this sort of retrospective application would not violate a testator’s liberty, nor would it alter any law upon which any testator would have relied in making his or her will (or a document similarly intended).

     
     

     The surrounding facts

104. When the Scottish Law Commission discussed the possibility of a dispensing power they recommended that:

     
     

     
     

     
     

     159 This argument is made in the Scottish Law Commission’s paper, see Report on Succession (1990) Scot Law Com No 124 p 45.

     160 The House of Lords also rejected an intermediate standard in child cases: Re B (Children) (Sexual Abuse: Standard of Proof) [2008] UKHL 35, [2009] 1 AC 11.

     161 We appreciate that the court would, if an applicant sought to use a dispensing power, need to know the date of the purported will, record or document to work out whether it had been superseded by an up to date statement of the deceased’s testamentary intentions.

     162 We note that the date of death of the testator determines whether the original or amended version of s 9 of the Wills Act 1837 (substituted by s 17 of the Administration of Justice Act 1982) applies to a will, see s 73(6) of the 1982 Act.

     163 The presumption relates to the interpretation of statutes. However, we consider the same principles ought to inform law making. For commentary on those principles, see B Juratowitch, Retroactivity and the Common Law (2008).

     The court making an order should have power to make a finding as to the date when, period within which, or place where, the writing was executed or made.164

     
     

105. We agree that this would be a useful power. It is possible to envisage that after a will is recognised through a dispensing power, a formally executed will is found. Identifying the date on which the will recognised through the dispensing power should be deemed to have been made will determine which will is later in time and should therefore be given effect. Determining the place in which the will was made may have consequences in private international law, for example, if a will’s validity or the law applicable in a dispute were to turn on where the will was executed.

     
     

     
     

     Registration of wills

106. Registration aims to tackle the problem of lost or destroyed wills. Testators who have gone to the effort of making a valid will may have their wishes thwarted if their will cannot be found after their death. The family and loved ones of the deceased may not know where to find the will, or they may be uncertain whether a will existed in the first place.

     
     

107. In order to assess the potential for reform in this area it is important to note the difference between “registration” and “storage” and the difference between compulsory and voluntary systems.

     
     

108. Registration usually refers to the act of recording the fact that a will exists and noting the location in which it is kept. Registration service providers index the relevant details so that executors and administrators can search the register in order to locate the testator’s will. Storage goes a step further; a service provider holds the document for

     
     

     
     

     164 Report on Succession (1990) Scot Law Com No 124 p 46.

     safekeeping. Many professionals will store a will as well as recording its existence with a registration company. Public bodies, solicitors, will-writers and specialised private companies provide storage and registration services.

     
     

109. In a system of compulsory registration, testators are compelled to register their wills. The usual sanction for failing to register a will is that the unregistered will is invalid. That stands to reason since it seems that no other sanction would properly serve to enforce the rule. In a system of voluntary registration, the testator chooses to register his or her will. Registration is then a matter of convenience; a way to make things easier for the executors of the estate.

     
     

     The current system in England and Wales

110. In England and Wales, there is no system of compulsory registration. However, testators can voluntarily register their wills with certain public or private bodies. Whether a will is registered or not has no bearing on the validity of the will.

     
     

111. The Principal Registry of the Family Division operates a scheme that is publicly accessible.165 For a fee of £20, testators may deposit their will at the Registry where it will be registered and stored.166 Testators are issued with a certificate of deposit.

     
     

112. Regulations make provision for the withdrawal of wills and outline the procedure to be followed on the death of a testator.167 Essentially, anybody who is entitled and intends to prove the will may withdraw it after the testator’s death on production of a death certificate and the certificate of deposit. Up until that point, the service is entirely confidential.

     
     

113. Several commercial registries also operate in England and Wales. Generally, those services do not store wills but record their location so that they can be easily found by executors when testators die. Solicitors and will-writers may also offer storage services and usually keep a register of the wills that they have stored.

     
     

114. This voluntary system does serve to address the problem of lost wills but it relies on the testator choosing to register their will. Reform of this voluntary system would amount to regulating the registration industry and therefore falls outside the scope of the project. Since the introduction of a compulsory system would impact the validity of wills, that question has been the focus of our considerations.

     
     

     Should the registration system be reformed?

115. While a system of compulsory registration would solve the problem of lost or destroyed wills, we consider that the disadvantages of such a system would far outweigh its benefits.

     
     

116. Compulsory registration would come at a financial cost, to either the state or individual testators. That cost, along with the additional administrative burden on the testator,

     
     

     
     

     
     

     165 See the Senior Courts Act 1981, s 126.

     166 How to Deposit a Will at the Probate Service, http://formfinder.hmctsformfinder.justice.gov.uk/pa007-eng.pdf (last visited on 14 June 2017).

     167 Wills (Deposit for Safe Custody) Regulations 1978 (SI 1978/1724).

     would risk discouraging people from making wills. Furthermore, it is not clear what an appropriate sanction would be for failure to register a will. If unregistered wills were not valid then compulsory registration would create unacceptable barriers for death-bed and homemade wills. Any sanction less than invalidity risks being ineffective.168

     
     

117. We note that some civil law jurisdictions require wills to be registered.169 However, it appears that only notarial wills are subject to that requirement. Given that a public official is necessarily involved in the making of a notarial will, the requirement to register a will is significantly less burdensome in that context than it would be in England and Wales.

     
     

118. We have also considered potential reform of the system of voluntary registration of wills in England in Wales. A public scheme for voluntary registration and storage exists and appears to function effectively. Additionally, the regulation of private schemes is clearly beyond the scope of our review of the law of wills. We have therefore provisionally concluded that the system of voluntary registration should not be the subject of any recommendations for reform in the Law Commission’s wills project.

     
     

119. Insofar as registration is relevant to electronic wills, it is considered in Chapter 6.

168 Although we note that under the Italian system, pecuniary sanctions apply to those who fail to register wills when required to do so. See K G C Reid, MJ De Waal, and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011), 126.

169 For example, Belgium, Italy, Netherlands and Spain. See K G C Reid, MJ De Waal, and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) pp 68, 126, 164 and 85.

Chapter 6: Electronic Wills

INTRODUCTION

1. Given that the law of wills is mostly contained in legislation from 1837 it comes as no surprise that the law assumes (even though it does not clearly require) that a will is a paper document. However, the increasing prevalence of digital technology in many aspects of our lives raises the question of whether and how that technology can be applied in relation to wills. In this chapter, we consider how the law can provide for people to make electronic wills.

   
   

2. The term “electronic will” is imprecise. A will might be called “electronic” because it uses digital technology in a number of different ways, at different stages of the process of making a will:

   
   

   1. in the preparation and drafting of a will;

      
      

   2. in the execution of a will (the completing of formalities); or

      
      

   3. in the storage and admission to probate of a will.

      
      

3. At the first stage, technology is used in the preparation and drafting of a will, which is then printed and signed in the usual way and stored as a paper document. The second stage takes the use of technology a step further. A will could be “electronically executed”. For example, the formalities might be met by an electronic signature and the will could then be printed to create the one authentic version of the will that the law currently requires. Finally, at the third stage, a will might exist only as an electronic or digital file. A will could be prepared, executed and stored electronically, and submitted to probate on the testator’s death as an electronic file. We call such a will a “fully electronic will”.

   
   

4. Technology is already widely used in the preparation and drafting of wills, whether a will is homemade or professionally written. A testator preparing a homemade will may purchase a will-making pack containing standardised electronic documents, or prepare a simple word-processed document to print and execute. Where a will is professionally written, technology is opening up new avenues of communication between practitioners and their clients. “Distance wills” in which a practitioner and client never meet in person, have existed for some time. Clients may give instructions for their will in the post or by telephone. A draft will is then prepared and sent to the client with instructions on how to execute it, before it is returned to the practitioner. Technology means that practitioners and clients may now communicate by email or videoconference, rather than through the post or by telephone.

   
   

5. Technology is also being used in more sophisticated ways in the preparation of wills. For example, will-drafting software can be used to prompt a professional to ask the testator certain questions or to include clauses that may apply to the majority of testators. Once the testator’s answers have been inputted, the automated system then creates a first draft of a will which is reviewed by the professional, discussed with the

   client and amended as necessary.1 Similar systems are available to people who wish to prepare a homemade will by downloading and subscribing to a will-making app.

   
   

6. Since technology is already widely used to prepare hard copy wills, the intuitive next step is to develop our capacity to execute wills electronically and to make use of fully electronic wills. In the rest of this chapter we use the term “electronic wills” to refer to both electronically executed and fully electronic wills.

   
   

7. In our view, electronic wills can only be effectively introduced using specially designed legal rules. In what follows we explore the benefits of electronic wills, explain why the current formality rules stand in the way of such wills and examine several methods of electronically authenticating documents.

   
   

8. While we are optimistic about the prospect of electronic wills, law reform in this area is not straightforward. Other law reform bodies have considered electronic wills and legislation geared towards introducing electronic wills has been proposed in several US states.2 However, we are not aware of any major jurisdiction that has successfully introduced electronic wills. While Nevada (USA) introduced an electronic wills statute in 2001, the statute's technological requirements have proved so difficult to satisfy that no current technology can meet the prescribed standards.3 The experience of other jurisdictions and our assessment of various methods of electronic authentication inform our provisional proposal of an enabling power to pave the way for the introduction of electronic wills.

   
   

   POTENTIAL ADVANTAGES OF THE USE OF TECHNOLOGY IN WILL-MAKING

   
   

9. The promotion of technology and the digitalisation of electronic commerce and transactions is a worldwide and ongoing project. The Government has been pursuing the digitalisation of government services since the late 1990s. Currently, the Government is pursuing a digital transformation strategy to transform the relationship between the citizen and the state, which includes the vision of giving

   
   

   citizens, businesses and other users a better, more coherent experience when interacting with government services – one that meets the raised expectations set by the many other (non-government) services and tools they use every day.4

   
   

10. There is little doubt that we increasingly expect to be able to manage our lives digitally. The use of technology in wills has the potential to make wills quicker and easier to

    
    

    
    

    1 Graham Cohen, “Drafted in” (2011) 155(33) Solicitors Journal 12, 12.

    2 Law Reform Commission of Saskatchewan, Report on Electronic Wills (2004); Alberta Law Reform Institute, The Creation of Wills (2009). The US Uniform Law Commission have assembled a Drafting Committee on Electronic Wills; however that Committee has not yet published any Bills or reports. See for example the Florida Electronic Wills Act, and New Hampshire Senate Bill 40.

    3 J Banks, “Turning a won’t into a will: revising will formalities and e-filing as permissible solutions for electronic wills in Texas” (2015 to 2016) 8 Estate Planning and Community Property Law Journal 291, 301.

    4 Cabinet Office and Government Digital Service, Government Transformation strategy (2017) https://www.gov.uk/government/publications/government-transformation-strategy-2017-to-2020/government- transformation-strategy (last visited 14 June 2017).

    make. If will-making becomes more convenient, more people may have a will; accordingly, convenience supports testamentary freedom.

    
    

11. The advantages of preparing wills electronically are clear; it is easier to amend a draft using a key stroke than re-writing an entire document. Technology can save practitioners time in drafting a will, allowing them to focus their attention on matters requiring legal or other expertise such as estate planning. Technology may also make will-making more convenient for testators: testators may find distance will services, in which they communicate their instructions on the phone or online, more convenient than meeting a solicitor or will-writer in person.5 Individuals who are isolated or who have disabilities or sensory impairments may also find online communication more accessible than having to meet someone face-to-face.

    
    

12. Electronic wills offer potentially significant gains in convenience. Some commentators have suggested that electronic wills could be easier to amend after they have been signed.6 Consequently, it would be simple for testators to keep their wills up to date. Commentators and stakeholders also suggest that electronic wills will be easier for testators to store than paper documents, offering increased security and prevention of accidental destruction. 7 Electronic wills may also be easier for executors to find on the death of the testator.

    
    

13. The greatest gains, not just for individual testators but also the probate system as a whole, could be offered by a system that linked up fully electronic wills with the probate service. It is possible to imagine a situation in which an electronic will could be created and executed online, electronically checked to ensure that it complies with the formality rules (at least, on its face),8 and then stored ready to be submitted for probate in electronic form automatically and efficiently on the testator’s death.

    
    

14. Some commentators have also suggested that the use of technology in will-making can offer improvements in terms of security. Some types of electronic signature may offer advantages over handwritten signatures, potentially being more difficult to forge and offering additional services. For example, as we discuss below, digital signatures encrypt the document to which they are applied, making the document unalterable once it is signed. However, different types of electronic signature present their own concerns relating to security; we discuss these concerns in more detail below.

    
    

    THE CURRENT LAW

    
    

15. The position of electronic wills under the current law is not entirely clear. It may be argued that certain types of electronic wills are valid under the current law. However,

    
    

    
    

    5 See J Banks, “Turning a won’t into a will: revising will formalities and e-filing as permissible solutions for electronic wills in Texas” (2015 to 2016) 8 Estate Planning and Community Property Law Journal 291, 307.

    6 See eg J Banks, “Turning a won’t into a will: revising will formalities and e-filing as permissible solutions for electronic wills in Texas” (2015 to 2016) 8 Estate Planning and Community Property Law Journal 291, 298.

    7 G W Beyer and C G Hargrove, “Digital wills: has the time come for wills to join the digital revolution?” (2007) 33(3) Ohio Northern University Law Review 865, 887. This point has also been reinforced by recent feedback from stakeholders.

    8 This would not prevent challenges to wills which might arise for a variety of reasons including lack of capacity, undue influence and so on. However, it would prevent testators from making clearly invalid wills.

    an electronic will has never been recognised as valid in this jurisdiction and our view is that the formality rules most likely preclude the electronic execution of wills. Even if the formality rules do not entirely prohibit electronic wills, the fact that the formality rules were not designed with electronic wills in mind is an impediment to the principled recognition of such wills. In order to see why this is the case, it is necessary to examine the current formality rules.

    
    

16. To be valid, a will must comply with the formality requirements which provide that a will must be in writing and be signed by the testator and by two witnesses in the presence of the testator.9 The question is then whether electronic wills are capable of fulfilling those requirements in their current form.

    
    

17. In the Law Commission’s 2001 Advice to Government on electronic commerce, we made the following observation:

    
    

    It is at least arguable that both the writing and the signature requirements found in section 9 of the Wills Act 1837 may be satisfied in relation to an electronic will. For example, the will could be typed on a computer and appear on screen, and the testator and the witnesses could add their signatures by one of the methods described above. We do not express any view as to the validity of an electronic will; such matters are beyond the scope of this Advice. But we can anticipate that the suggestion that, as the law currently stands, it may be possible to make an electronic will would surprise and concern many people, and that it might well be thought desirable to impose restrictions on the validity of ‘e-wills’, or even to deny their validity altogether.10

    
    

18. The legal position of electronic wills remains largely unchanged and the matter has not been the subject of a judicial decision. However, the decision in Lim v Thompson emphasises the forensic value of handwritten signatures and may lend further weight to the argument that handwritten signatures are required by section 9 of the 1837 Act.11 In what follows, we consider both sides of the argument.

    
    

19. An electronic will would most likely satisfy the requirement of writing in the 1837 Act. The Act imposes no restriction on the material to be used and the Interpretation Act 1978 defines “writing” broadly.12 As we suggested in our 2001 Advice to the Government, the Interpretation Act 1978’s requirement of “words in visible form” would be satisfied by some forms of electronic communication, including emails, because they allow information to be viewed in visible form, with the words displayed on a computer screen.13 Moreover, courts have subsequently accepted emails as satisfying legislative requirements that a document (usually an agreement) be in writing.14 Although we are

    
    

    
    

    9 See Chapter 5 and Wills Act 1837, s 9.

    10 Electronic Commerce: Formal Requirement in Commercial Transactions (2001) Advice from the Law Commission, paras 3.45.

    11 [2009] EWHC 3341 (Ch), [2010] WTLR 661.

    12 Interpretation Act 1978, sch 1.

    13 Electronic Commerce: Formal Requirement in Commercial Transactions (2001) Advice from the Law Commission, paras 3.5 to 3.23. See Interpretation Act 1978, s 5 and sch 1.

    14 For example, as required under the Statute of Frauds 1677, s 4: J Pereira Fernandes SA v Mehta [2006] EWHC 813 (Ch), [2006] 1 WLR 1543 at [16].

    not aware of any such decision in relation to the requirement for writing under the Wills Act 1837, similar considerations would apply.

    
    

20. A more difficult issue is whether electronic wills could satisfy the present requirement that a will is signed (by both the testator and the witnesses). “Signature” is not defined in the Interpretation Act 1978 and there is no reported decision in which the issue has been addressed by a court in England and Wales in respect of wills.15

    
    

21. On one hand, it is arguable that a simple typed signature would meet the signature requirement in the 1837 Act. Typed signatures have been accepted as fulfilling the requirement for a signature in some other contexts and arguably, the same should be true of wills.16

    
    

22. On the other hand, it may be argued that signatures on wills have been held to a particularly high standard. For example, in Lim v Thompson, Judge Purle QC considered that one of the primary purposes of the Wills Act is to prevent fraud. In that case, it was held that a photocopy of the testator’s signature did not meet the requirements of the 1837 Act. Given that the testator is not alive to testify, the judge noted that “it is very important that what must survive is an original signature … so that the court can examine it and properly evaluate the evidence as to due execution”.17

    
    

23. Lim v Thompson suggests a reluctance by the court to accept anything other than an original handwritten signature as fulfilling the requirement of section 9 of the 1837 Act. However, electronic signatures might be seen in a different light, particularly where they are more secure than a simple typed name. The case law does not conclusively resolve the issue of whether an electronic signature could meet the requirements of the 1837 Act.

    
    

24. EU directives and regulations add a further dimension to the debate.18 EU directives have been implemented by the UK via the Electronic Communications Act 2000 and the Electronic Identification and Trust Services for Electronic Transactions Regulations

    
    

    
    

    
    

    15 It seems that this question has been considered in some US states. A will in which the testator typed his name, which was then printed and signed by the witnesses, was accepted as meeting the requirements for a valid will in Tennessee: Taylor v Holt (2003) 134 SW 3d 830 (Tennessee Court of Appeal). However, one commentator suggested the case is an application of the state’s harmless error doctrine: see S S Boddery, “Electronic wills: Drawing a line in the sand against their validity” (2012) 47 Real Property, Trust and Estate Law Journal 197, 204 to 205. See also Re Castro (2013) Probate Div Case No 2010ES00140 (Lorain Country, Ohio, Court of Common Pleas).

    16 For example: a typed name in an email satisfies the requirement in the Statute of Frauds 1677 that a guarantee to be in writing and signed (Pereira Fernandes SA v Mehta [2006] EWHC 18 (Ch), 1 WLR 1543 at [29] and [30]); and typed names in emails would be capable of meeting the statutory requirements that a contract for a disposition of an interest in land, an actionable representation about another person’s character, and an offer to settle all be in writing and signed (Green v Ireland [2011] EWHC 1305 (Ch), [2012] 1 BCLC 297 at [44]; Lindsay v O’Loughnan [2010] EWHC 529 (QB), [2012] BCC 153 at [95]; Orton v Collins [2007] EWHC 803 (Ch), [2007] 1 WLR 2953 at [21]).

    17 Lim v Thompson [2009] EWHC 3341 (Ch), [2010] WTLR 661 at [25].

    18 Electronic Commerce Directive (2000/31/EC on certain legal aspects of information society services, in particular, electronic commerce, in the Internal Market); Directive on a Community Framework for Electronic Signatures (1999/93/EC) (repealed); and the Regulation on electronic identification and trust services for electronic transactions in the internal market (2014/910/EU) (“eIDAS Regulation”).

    2016.19 The EU Regulation (No. 2014/910) on electronic identification and trust services for electronic transactions in the internal market (“the eIDAS Regulation”) has been directly applicable in EU member states since July 2016.

    
    

25. The purpose of these laws is to facilitate electronic commerce, which includes facilitating the use of electronic signatures by parties to transactions. As part of this, section 7 of the Electronic Communications Act 2000 states that electronic signatures are admissible in legal proceedings in relation to electronic transactions.

    
    

26. For two reasons, we believe that the EU legislation, and the domestic measures through which it has been implemented, does not impose any requirement for electronic signatures to be accepted in the context of wills. First, both the EU instruments and the domestic legislation apply in a commercial and transactional context, not in the context of will- making.20 Secondly, the EU and domestic legislation does not generally dictate that an electronic signature meets a statutory requirement for a signature or writing. Article 2(3) of the eIDAS regulation “does not affect national or Union law related to the conclusion and validity of contracts or other legal or procedural obligations relating to form”.21

    
    

27. There is one exception in the eIDAS Regulation which provides that one type of electronic signature, a “qualified electronic signature”, has special status. Article 25(2) of the Regulation provides that “a qualified electronic signature shall have the equivalent legal effect of a handwritten signature”. A qualified electronic signature is a digital signature that meets a particular standard (called a qualified electronic signature creation device) and certified by a certification authority meeting certain standards (called a qualified certificate for electronic signatures, by a qualified trust service).22 As noted by the Law Society, “qualified electronic signatures are not commonly used in England”.23

    
    

28. Even if eIDAS applies to wills, it is not clear that qualified electronic signatures would be treated as valid for the purposes of executing a will. It appears that, even if eIDAS applies in the context of wills, qualified electronic signatures would have to be functionally equivalent to handwritten signatures in order to have the same effect. In commercial transactions, the signature functions to validate one counterparty’s identity

    
    

    
    

    
    

    19 SI 2016 No 696.

    20 The eIDAS Regulation applies to electronic identification schemes notified to the European Commission and trust service providers. “Regulation seeks to enhance trust in electronic transactions in the internal market by providing a common foundation for secure electronic interaction between citizens, businesses and public authorities, thereby increasing the effectiveness of public and private online services, electronic business and electronic commerce in the Union”: ((2014/910/EU), Recital (2)).

    21 The eIDAS Regulation ((2014/910/EU), art 2(3)); see also recitals (21) and (49). Moreover, Electronic Communications Act 2000, s 8 enables the appropriate Minister to modify provisions of legislation to authorise or facilitate the use of electronic signatures; authorisation would not be necessary if electronic signatures already amounted to signatures for the purposes of all legislation. See also Judicial Studies Board, Digital Signature Guidelines (July 2000) p 3.

    22 See O A Orifowomo and O Agbana, “Manual signature and electronic signature: significance of forging a functional equivalence in electronic transactions” (2013) 24(10) International Company and Commercial Law Review 357, 364. However, for the criticism that no type of electronic signature can meet the first requirement that it is “uniquely linked to the signatory”, on the basis that the signature is uniquely linked not to the user, but to the private key, which users cannot memorise, see S Mason, “Electronic Signatures” (2016) 22(7) Computer and Telecommunications Law Review 173, 173.

    23 The Law Society, Execution of a document using an electronic signature (Practice notes, 21 July 2016).

    to the other. The signature evidences the agreement. In a wills context, the signature functions to authenticate a document. Arguably, the unilateral nature of wills means that a signature on a will performs a distinct function.

    
    

29. Beyond the issues described above, we also note that there is a degree of tension within the Regulation itself: Article 25(2) of eIDAS is arguably contrary to article 2(3), (both quoted above).

    
    

30. While we recognise that there is significant uncertainty in this area, our view is that eIDAS does not require a qualified digital signature to be recognised as a valid signature on a will. In light of the further uncertainty as regards electronic signatures in the current law, we see a need for the law to be clarified and we make a provisional proposal to that effect in this chapter.24

    
    

31. It will be apparent that the key issue for electronic wills is authentication: whether an electronic signature could and should be accepted as a signature for the purposes of executing a will. Nevertheless, it is also important to consider the current witnessing requirement with regard to electronic wills.

    
    

32. For a will to be valid, the testator must sign or acknowledge his or her signature in the presence of both witnesses and the witnesses must sign or acknowledge their signatures in the presence of the testator. Whether the parties are in each other’s presence is currently decided with reference to whether they are in the same room and whether there is a line of sight.25 That rule would be difficult to apply where a witness is said to have had a line of sight to the testator via an online videoconference (there has been no such case). However, it is unlikely that the current law governing witnessing extends to witnessing via videoconferencing because “presence” has been held to involve physical presence.26

    
    

    ENABLING ELECTRONIC WILLS

    
    

33. In this section, we set out the key elements of the policy arguments that have informed our provisional proposals regarding electronic wills. While those arguments are informed by the detailed considerations explained later in this chapter, we hope that setting out the essential points will assist consultees in responding directly to our provisional proposals.

    
    

34. Our starting point has been to recognise that, while the status of electronic wills is currently uncertain, it is highly likely that their use will become commonplace in the future. We welcome development in this area and believe that our review of the law of wills is an opportunity to ensure that any future transition to electronic will-making is as smooth as possible. With that in mind, we have tried to determine the parameters of a satisfactory system for electronically executing a will. We have focussed on electronic signatures and identified three core issues.

    
    

    
    

    
    

    24 See para 6.44 below.

    25 See Chapter 5, and R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession

    (13th ed 2016) pp 49 and 50.

    26 In the goods of Chalcraft [1948] P 222.

35. First, and most importantly, electronic signatures must be secure. Electronic signatures must provide strong evidence that a testator meant formally to endorse the relevant document; electronic signatures must reliably link a signed will to the person who is purported to have signed it. Handwritten signatures perform this function well. They are distinctive marks, made directly by the testator, amenable to detailed forensic analysis. Consequently, we have proceeded on the basis that electronic signatures should be no less secure than handwritten signatures. Since the level of security offered by different electronic signatures varies, it is essential that a legal mechanism exists for determining which electronic signatures are sufficiently secure, and which are not. For this reason, we have concluded that electronic wills must be subject to specific legal rules.

    
    

36. Secondly, the infrastructure required to support electronic will-making must be viable, both technologically and commercially. There is a risk that narrowly specifying types of valid electronic will could be counterproductive. Tightly specifying the necessary technical requirements may have the effect of preventing the adoption of electronic wills rather than enabling their adoption. This appears to be a problem in Nevada, the only jurisdiction we are aware of having legislated to introduce electronic wills.27 A similar issue has arisen with regard to the Land Registration Act 2002 where the electronic conveyancing provisions were arguably so ambitious that the Act prevented incremental development of appropriate systems.28

    
    

37. Considering the numerous potential ways in which electronic wills could be made, we are cautious of proposing overly specific primary legislation. We believe that any recommendations that we ultimately make should not unduly limit either the technology that is used in electronic will-making, or the commercial incentives to create a secure will-making system. These considerations suggest the need for a degree of flexibility in the law.

    
    

38. Thirdly, we believe that there should be a degree of consistency across platforms for electronic will-making. There are myriad possible methods for executing and storing a will electronically and a free-for-all as to permissible methods might create uncertainty as to what constitutes a valid electronic will, thereby dissuading testators from using electronic means. Furthermore, a clear and consistent definition of what constitutes an electronic will would protect testators from using methods that might not be upheld after death. Like the concerns about security of electronic wills, concerns about consistency suggest a need for electronic wills to be regulated.

    
    

39. The issues of security, viable infrastructure, and consistent implementation all indicate that a balance needs to be struck between regulating electronic wills and allowing enough flexibility in the law for electronic wills to develop. Our current view is that the balance is best struck by conferring on the Lord Chancellor the power to make provision for electronic wills by statutory instrument.

    
    

    
    

    27 J Banks, “Turning a won’t into a will: revising will formalities and e-filing as permissible solutions for electronic wills in Texas” (2015 to 2016) 8 Estate Planning and Community Property Law Journal 291, 301.

    28 In particular, with regard to the requirement for simultaneous completion and registration: Updating the Land Registration Act 2002: A Consultation paper (2016) Law Commission Consultation Paper No 227, paras

    20.16 and following.

40. This view is reinforced by the fact that technical expertise will be vital in shaping the precise legal framework for electronic will-making. In that regard, specialised departments within Government may be more apt than the Law Commission to provide relevant advice. Nevertheless, we see the present consultation as an opportunity to engage with specialist stakeholders and call for evidence (from all stakeholders) about methods of electronic signatures.

    
    

41. While we have focussed on electronic signatures, the witnessing requirements will also be an important part of the formality rules. If electronic wills are introduced, the rules governing “presence” will have to be revisited. At a minimum, there will be a need to make clear whether witnesses have to be physically present or whether some sort of online presence (for example, videoconferencing) will suffice.

    
    

42. We do not make any provisional proposals as to the nature of the witnessing in relation to electronic wills since the suitability of any particular method of witnessing would depend on precisely how a will is to be electronically signed. We note, however, that the introduction of electronic wills is not, by itself, a reason to dispense with the witnessing requirement. While the most secure electronic signatures could make fraud extremely difficult, the witnessing requirement functions not merely to prevent fraud but also to protect testators from undue influence. Witnesses might also provide valuable evidence when a will is contested.29 For example, as to the testator’s capacity, as well as in respect of any allegation of undue influence. In short, witnesses fulfil functions that electronic signatures cannot.

    
    

43. We consider that protecting testators from fraud and undue influence ought to be an important consideration whatever system for electronic will-making is ultimately adopted. The current rules provide a convenient benchmark. At a minimum, electronic wills should meet the standards of protection provided by handwritten signatures made or acknowledged in the presence of witnesses.

    
    

    
    

    29 See para 6.98 below.

    
    

    
    

    Uncertainty in the current law

44. The provisional conclusion that we have reached with regard to electronic wills also suggests a way forward with regard to the uncertainty that exists in the current law concerning whether electronic signatures could satisfy the requirements of the 1837 Act.

    
    

45. The enabling power that we provisionally propose would allow electronic wills to be subject to a legal regime designed specifically to govern such wills. In our view, electronic wills are better recognised through that type of explicit law making than through the interpretation of the 1837 Act, which could not have been created with electronic will-making in mind. For that reason, we provisionally propose that legislation should be introduced to make clear that electronic signatures do not satisfy the current signature requirement – a requirement we propose to maintain unaltered in the law of wills.

    
    

    ELECTRONIC SIGNATURES: METHODS AND CHALLENGES

    
    

46. The ability of testators and witnesses to sign wills electronically is essential to the viability of electronic wills. Assessing electronic signatures is complicated by the fact that there are many methods by which a document can be authenticated electronically. Some such methods are quite different from handwritten signatures. For example, while a handwritten signature is a “name or some mark which is intended to represent that name”,30 there may be no such mark on the face of a document protected by a password. Nevertheless, a password can serve to authenticate a document even when it does not mark it. For that reason, methods such as passwords are considered to be electronic signatures.

    
    

47. In this section we consider the following forms of electronic signature:

    
    

    1. typed names and digital images of handwritten signatures;

       
       

    2. passwords and PINs;

       
       

    3. biometrics; and

       
       

    4. digital signatures.

       
       

48. In Chapter 5, we explained the purposes of formalities. In short, formalities serve to protect testators from fraud and undue influence as well as to channel them towards a known form of will and to alert them to the seriousness of making a will. Signatures function primarily (although not exclusively) to authenticate a document and thereby prevent fraud. For that reason, our consideration of electronic signatures focuses on security. In what follows, we assess and explain the strengths and weaknesses of various methods.

    
    

49. To some degree, we have used handwritten signatures as a benchmark against which to assess electronic signatures. In our view, electronic signatures used for the purposes of executing a will should be at least as secure as handwritten signatures. While it is impossible to measure the security of any means of authentication precisely, we note that handwritten signatures provide a particular level of protection against fraud because of their forensic value. Forensic document examiners can provide valuable evidence about the authenticity of handwriting, including signatures.31 We expect viable electronic signatures to have similar or better forensic value.

    
    

50. Nevertheless, we recognise that security is not the only issue at stake in considering electronic signatures. Each method that we consider relies on some technological infrastructure (even if that is as simple as owning a computer or tablet) and we explain various challenges that different platforms raise with regard to infrastructure and convenience as well as assessing their security.

    
    

    
    

    
    

    30 Hindmarsh v Charlton (1861) 11 ER 388, 391.

    31 Forensic document examiners have scientific training so are distinct from graphologists. However, they are not a regulated profession, so some will have more expertise than others: J Holland, “The rise and rise of will forgery actions” (2015) 1 Private Client Business 37, 41 to 42.

    Typed names and digital images of handwritten signatures

51. A rudimentary electronic signature may consist of a typed name in an electronic document, or a digital image of a handwritten signature. Such digital images may be produced by a scan, a photograph or using a stylus on a tablet, and therefore require little by way of technological infrastructure.32

    
    

52. While these forms of electronic signature have the benefit of simplicity, they bring with them a high risk of fraud. Anyone can type “Jane Smith” into an electronic document without Jane Smith’s knowledge or involvement. Similarly, an image of signature can be easily copied into a document. As a result, typed names and pictures of signatures provide little evidence that a testator intended to authenticate a document. This is in stark contrast to original handwritten signatures.

    
    

53. Where a dispute arises over the authenticity of a handwritten signature, the signature itself provides significant forensic evidence. A professional will be able to compare known samples of a person’s writing with the signature under consideration, examining each type of writing, independently, to determine two things:

    
    

    1. whether it is original (meaning ink on paper); and

       
       

    2. whether it has the features of natural writing, by considering whether there is consistent size and slant and thickening and thinning of lines when the pen changes direction.

       
       

54. The examiner will consider whether each writing has distinctive characteristics by assessing its internal consistency, comparability and variation. Next, the examiner will compare the writings to identify significant similarities or differences. In comparing them, the examiner will consider a long list of attributes.33 If there is no normal variation between the writings, he or she will look for indications of tracing or imitation. He or she will be alert for retouching, lifts, stops, slow draft line quality, and unnatural tremors. The examiner will consider factors that can limit a person’s writing, such as age, illness, fatigue, haste, nervousness, the nature of the document, and, importantly, a deliberate attempt to disguise. The examiner will then evaluate the significance of the characteristics observed in comparison in order to make a conclusion whether the writings were made by the same or different persons.34

    
    

    
    

    
    

    32 Where a stylus is used and data is captured about speed, pressure and so on, the stylus signature is a “biodynamic manuscript signature”. That type of signature is considered below at para 6.69. See Re Castro (2013) Probate Div Case No 2010ES00140 (Lorain Country, Ohio, Court of Common Pleas) in which a signature made on a tablet with a stylus was treated merely as an image.

    33 These attributes include alignment; arrangement; positioning; connectedness; cross strokes and dots; direction of strikes; handedness; line quality; pen hold and pen position; overall pressure and patterns of pressure; size; skill; slope; spacing; speed; initial, connecting and ending strokes; and range of variation.

    34 D Harrison, T M Burkes and D P Seigner, “Handwriting examination: Meeting the challenges of science and the law” (2009) 11(4) Forensic Science Communications, https://archives.fbi.gov/archives/about- us/lab/forensic-science-communications/fsc/oct2009/review/2009_10_review02.htm (last visited 14 June 2017). See also S Mason, Electronic Signatures in Law (3rd ed 2012) pp 11 to 12.

55. Robust analysis requires original writings: photocopied writing does not allow for full consideration of all the different attributes of writing.35

    
    

56. Although courts prefer evidence of direct witnesses to the alleged execution, expert evidence from a forensic document examiner in will forgery cases is generally useful, and is vital when there are no available witnesses to the will’s alleged execution.36 As one commentator noted, “it would be a brave party indeed who felt able to take a case to trial without such expert evidence”.37

    
    

57. Therefore, while handwritten signatures may appear superficially to be very similar to electronic pictures of signatures, there is a significant difference between them from a forensic standpoint. For that reason, we consider that these typed names and digital pictures of signatures are not secure enough to be used to authenticate electronic wills.

    
    

58. This conclusion is not affected by the fact that a testator can, in principle, sign by merely making a mark.38 It is true that a simple mark is a poor source of forensic evidence and, in terms of security and the prevention of fraud, it would seem that, with regard to signatures by mark, the bar is set fairly low. However, marks tend only to be used as signatures in exceptional circumstances. Therefore, the vast majority of handwritten signatures provide significant forensic evidence in relation to fraud. The infrequency of signatures by mark makes it practically acceptable for the Probate Service (and, if necessary, the courts) to look to extrinsic evidence to verify the fact that a mark is, in fact, an authentic signature.

    
    

59. Were typed names and electronic images recognised as valid signatures, there would be a risk that those signatures could become the norm. If insecure electronic signatures were commonly used, it might be that the majority of probate cases would require reference to extrinsic evidence of execution. That situation would be practically unworkable. Therefore, in our view, the different practical effects of electronic signatures and physical signatures warrant different treatment. The appropriate comparison is between ordinary handwritten signatures and their electronic counterparts.

    
    

    
    

    35 D Harrison, T M Burkes and D P Seigner, “Handwriting examination: Meeting the challenges of science and the law” (2009) 11(4) Forensic Science Communications, https://archives.fbi.gov/archives/about- us/lab/forensic-science-communications/fsc/oct2009/review/2009_10_review02.htm (last visited 14 June 2017).

    36 J Holland, “The rise and rise of will forgery actions” (2015) 1 Private Client Business 37, 41.

    37 J Holland, “The rise and rise of will forgery actions” (2015) 1 Private Client Business 37, 43. For confidence in the value of a handwritten signature, see a consultation response to Ministry of Justice, Transforming the Services of the Office of the Public Guardian: Enabling Digital by Default (Response to Consultation CP(R) 26/11/2013, August 2014) p 34, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/346357/digital-by-default- response.pdf_-_Adobe_Acrobat_Pro.pdf (last visited 14 June 2017).

    38 See para 5.16 above.

    Passwords and PINs

60. Passwords and PINs are common ways to authenticate electronic documents. Commentators have suggested that a password or PIN could be used to sign a will created online or to password protect a will created on a computer.39 There are different forms that such a will could take. A simple version would be a document that we store on a computer and sign by adding a password or PIN, which is provided to our executors (or someone else) to access on our death. Alternatively, we could use a password or PIN to execute our will by sending it to a third party. We consider one possible use of these electronic signatures below, through a system known as Verify.40

    
    

61. Passwords and PINs do not all offer the same level of security. The strength of passwords and PINs depends on their inherent complexity as well as the user’s ability to keep secret the PIN or password. As Stephen Mason has explained, in order to make passwords easy to remember, people chose personally meaningful words or combinations of numbers, which are predictable by others. People may allow personal or work computers to remember and apply passwords automatically, giving anyone with access to the computer the ability to apply a password or PIN, or people may too readily share passwords with others.41

    
    

62. In our initial discussions with stakeholders the security of passwords and PINs was raised as a specific concern in respect of elderly people. Stakeholders expressed concern that some older people might provide their passwords or PINs to family members and carers, increasing their vulnerability to undue influence and fraud.42

    
    

63. Furthermore, passwords and PINs are not intrinsically connected to their users. It is necessary to link a password and PIN with a particular individual. For example, we are only able to use PINs to authenticate our identity at cash machines because our bank has already reliably linked us to an account, card number and PIN. This is usually done in person at a branch; we present ourselves, as well as identity documentation in order to open an account. What this shows is that passwords and PINs are convenient methods of authentication once they are set up, but initially establishing the connection between user and password or PIN might be labour intensive and require specialised technological infrastructure. One concern is that the initial difficulty might not be proportionate in the context of one-off (or seldom done) acts such as making a will.

    
    

64. In addition, it is arguable that typing in a password or PIN could be too commonplace to alert people to the seriousness of preparing a will. Many people now use passwords or PINs many times a day, for a variety of tasks, including accessing mobile phones,

    
    

    
    

    39 See eg J Banks, “Turning a won’t into a will: revising will formalities and e-filing as permissible solutions for electronic wills in Texas” (2015 to 2016) 8 Estate Planning and Community Property Law Journal 291, 308 to 309.

    40 See para 6.65 below.

    41 S Mason, Electronic Signatures in Law (3rd ed 2012) pp 286 to 288, discussing the use of passwords to protect the private key of a digital signature.

    42 Similar concerns were raised with regard to the potential for digital Lasting Powers of Attorney: Ministry of Justice, Transforming the Services of the Office of the Public Guardian: Enabling Digital by Default (Response to Consultation CP(R) 26/11/2013, August 2014) p 35, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/346357/digital-by-default- response.pdf_-_Adobe_Acrobat_Pro.pdf (last visited 14 June 2017).

    email or voicemail inboxes, turning house alarms on and off, and purchasing groceries on a card payment machine. Passwords and PINs have become routine ways of accessing private materials or spaces and making payments. If making a will came to be seen as routine, there is a risk that testators would be more likely to make ill- considered dispositions.

    
    

65. The challenges of using passwords may be met by using Verify to execute electronic wills. Verify is an identification system that is used to provide members of the public with access to some Government services. Verify operates by requiring an authorised company to authenticate details of a person on the basis of known information in order for the person to access a Government service. When a member of the public wants to access a Government service electronically, he or she must choose from a list to select one Government-authorised company to confirm his or her identity using Verify. The company checks the person’s identity by comparing information the person provides against known information about him or her: it asks the person questions about, for example, the person’s passport, driving licence or mobile phone contract, or performs checks, for example, using photo identification or financial information. Once the person’s identity has been verified, the Verify service will provide the person with a username and password, which can be used to log onto online Government services.43

    
    

66. It is possible, in principle, for the Government, or a Government authorised body, to use Verify to provide for fully electronic wills, with the will being executed by the testator entering his or her username and password and then being stored.

    
    

67. We have concerns, however, as to whether the use of Verify would be sufficient to protect testators from undue influence and impersonation. Verify does not currently ensure that the person entering the information is in fact the person he or she is purporting to be; rather it focuses on verifying that the person exists.44 While the involvement of witnesses generally provides some protection against fraud and undue influence, Verify does not currently have any facility for the participation of witnesses. Furthermore, Verify relies on passwords to control access to the service. There is a risk, therefore, that testators will give their passwords to family members or carers, and might be pressured to do so by persons wanting to abuse them.

    
    

68. The use of Verify also requires a third party – the Government or an authorised body – to be involved in the process of the testator signing his or her will electronically. The need for a counterparty to be involved is a common feature of secure electronic signatures and we discuss the practical challenges associated with counterparties where we consider digital signatures, below.

    
    

    
    

    
    

    43 Cabinet Office, Government Digital Service, Gov.UK Verify Guidance (17 September 2014), https://www.gov.uk/government/publications/introducing-govuk-verify/introducing-govuk-verify (last visited 14 June 2017).

    44 Similar concerns were raised in response to the consultation on fully digital Lasting Powers of Attorney: Ministry of Justice, Transforming the Services of the Office of the Public Guardian: Enabling Digital by Default (Response to Consultation CP(R) 26/11/2013, August 2014) p 35, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/346357/digital-by-default- response.pdf_-_Adobe_Acrobat_Pro.pdf (last visited 14 June 2017).

    Biometric signatures

69. A biometric signature is a type of electronic signature that measures a unique physical attribute of the signatory in order to authenticate a document.45 Examples of biometrics include fingerprints, iris scans, voice recognition, facial recognition, and even gait recognition. A biodynamic version of a handwritten signature (called a biodynamic manuscript signature) is a type of biometric signature that is increasingly being used. The unique way that a person signs is recorded as a series of measurements together with a digital reproduction of the signature.46 Various parameters may be recorded, including speed, rhythm, pressure, and even the angle of the stylus. While a handwriting examiner will look for indicators of these characteristics, biodynamic signatures can capture actual measurements of them. Biodynamic signatures therefore allow analysis of characteristics not inherently captured in handwritten signatures.47

    
    

70. Biometrics are more secure than many types of electronic signature. However, biometrics, particularly biodynamic manuscript signatures, are limited by the systems used to record and analyse them.48 The quality of systems used varies widely. Different systems record and transmit data differently and at different speeds, with some only recording a few measurements and others recording many. For example, biodynamic data (for example, speed) could be recorded on a tablet when a testator signs with a stylus. However, the tablet would measure fewer parameters than specialised equipment and the data that is recorded could be of lower quality. In policy terms, a decision on biodynamic signatures is not a binary issue of allowing testators to use biodynamic signatures or not. If biodynamic signatures were recognised it might be useful to specify which parameters should be measured and to set minimum standards for the reliability of the data captured.

    
    

71. Biometric data are also not as secure as some might think and recent work in the area has shown that they may be obtained from photographs. Japanese researchers have shown that fingerprint data can be obtained from smartphone photographs taken of subjects making “peace signs” from three meters away,49 and a hacker claims to have obtained Angela Merkel’s iris data from a photograph.50 One difficulty with biometric data is that once it is compromised, it cannot easily be made secure again; a fingerprint cannot be reset in the same way a password can.

    
    

72. Furthermore, biometrics must be linked in a coherent way to individuals. Each individual must provide a biometric sample against which his or her biometric signature will be

    
    

    
    

    
    

    45 Biometrics are contemplated as the “authentication characteristic” of the testator in the Nevada electronic will statute: Nevada Revised Statutes, s 133.085.

    46 S Mason, Electronic Signatures in Law (3rd ed 2012) pp 256 and 269 to 271.

    47 H H Harralson, “Forensic document examination of electronically captured signatures” (2012) 9 Digital Evidence and Electronic Signatures Law Review 67, 67.

    48 H H Harralson, “Forensic document examination of electronically captured signatures” (2012) 9 Digital Evidence and Electronic Signatures Law Review 67.

    49 https://phys.org/news/2017-01-japan-fingerprint-theft-peace.html (last visited 14 June 2017).

    50 https://www.scmagazineuk.com/starbugs-in-your-eyes-german-hacker-spoofs-iris- recognition/article/535281/ (last visited 14 June 2017).

    compared in the future.51 This could involve checking biometric data attached to a will against the same data stored privately by the testator for other purposes. For example, a biodynamic signature on an electronic will could be checked against the testator’s biodynamic signature on another electronic document. However, a more robust system would require an organisation to take responsibility for checking individuals’ identities and taking their biometric samples. This organisation would have to retain and keep safe from third-party intrusion this repository of signatories’ personal biological information.52 The use of biometric signatures in respect of wills might then require specialised infrastructure and a dedicated counterparty. Both of those issues are explored with regard to digital signatures, below.

    
    

    Digital signatures

73. A “digital signature” is a distinct form of electronic signature. It is currently the most secure form, and offers protections that handwritten signatures do not. Stephen Mason describes a digital signature as “data appended to, or a cryptographic transmission of, a data unit that allows the recipient of the data to prove the source and integrity of the data unit”.53 A digital signature comprises two actions: a signature by the signatory and verification of the signature by the recipient.

    
    

74. A digital signature is based on asymmetric cryptography.54 In the most basic terms, a complex cryptographic algorithm allows data to be scrambled (or encrypted) using one long numerical key, and unscrambled (decrypted) using a different numerical key.55 The keys are paired and the decrypting key will only work to decrypt data that was encrypted using a particular encrypting key. The mathematical relationship between the two keys makes it is impossible, at present, to ascertain an encrypting key from the decrypting key within a useful time scale (doing the necessary calculations might take a powerful computer hundreds of years).56 As a result, when a person successfully decrypts data using a key, they can be certain that it was encrypted using that key’s counterpart and has not been altered.

    
    

75. A person using this system to sign a document will keep their encrypting key private. By making their decrypting key public, the person who encrypts a document allows others to i) read the encrypted document and ii) to be sure the contents of the document have not been tampered with because only the person with the private encrypting key could have encrypted it. In doing so, the person who encrypts the document is able to

    
    

    
    

    51 This applies to biodynamic manuscript signatures too. They cannot yet be reliably compared to handwritten signatures due to the differences in writing surfaces and writing instruments in biodynamic versus handwritten signatures, and the quality of electronic recordings: H H Harralson, “Forensic document examination of electronically captured signatures” (2012) 9 Digital Evidence and Electronic Signatures Law Review 67, 60 to 70 and 72.

    52 S E Blyth, “Finland’s Electronic Signature Act and E-Government Act: Facilitating security in e-commerce and online public services” (2008) 31 Hamline Law Review 443, 448; S Mason, Electronic Signatures in Law (3rd ed 2012) pp 256 and 272.

    53 S Mason, Electronic Signatures in Law (3rd ed 2012) p 189.

    54 S Mason, Electronic Signatures in Law (3rd ed 2012) p 189.

    55 A cryptographic algorithm is a set of mathematical rules applied to data in order to convert it into a code, thereby concealing information from all except those who are able to reverse the effects of the process. In this case, one of the two keys is required to reverse those effects; to decrypt the encrypted data.

    56 S Mason, Electronic Signatures in Law (3rd ed 2012) p 123.

    prove to its recipients that the document they have read is authentic. In that sense, the person who encrypts a document with their private key signs it.57

    
    

76. Digital signatures on their own do not guarantee that the user was the one who applied the private key. There must be a reliably established link between the key pairs and the person who claims that it links to their private key. Public Key Infrastructure (“PKI”) attempts to link users securely with their key pairs and so to their digital signatures. PKI relies on authorised or trusted intermediaries, called certification authorities, to certify the link between a user and his or her public key.58 They do so by issuing the user an identity certificate that binds the user’s name to his or her public key. The identity certificate also identifies the certification authority and is signed with the certification authority’s own private key.59

    
    

77. Under PKI, certification authorities must establish protocols to verify each user’s identity, create and distribute identity certificates (and possibly also key pairs),60 and cancel identity certificates when they expire or their security has been compromised.61 These protocols are vital, and the security of digital signatures relies on them.

    
    

78. PKI authentication is evidently secure and using a PKI system to sign wills could improve protection afforded to testators against fraudulent wills. Digitally signed wills might also offer advantages in terms of storage as well as ease of transfer between legal teams, courts, those dealing with probate and so on. However, we have identified four challenges that would have to be met were a PKI system to be adopted. These challenges also apply to password-based and biometric systems that require a counterparty.

    
    

79. First, PKI would have to be adapted for executing a unilateral document. In the commercial context, there are third parties with an interest in verifying the authenticity of a PKI signature. Counterparties to a contract use public keys to check the veracity of documents and certification authorities have an interest in making sure that their protocols are robust.

    
    

80. In a will-making context, there is no natural counterparty and one would have to be engineered. While we are aware that the position might change rapidly, the low cost of making physical wills (which are sometimes used by solicitors as a “loss leader”) diminishes the commercial incentive to create a counterparty system that would have to be secure and guaranteed to be robust in the long term. Furthermore, stakeholders

    
    

    
    

    57 The reverse process is also possible to keep communication private: the sender uses the recipient’s public key to encrypt a document, and the recipient uses his or her private key to decrypt it. Only the recipient’s private key can decrypt it.

    58 Note that under the Electronic Communications Act 2000, s 7(1)(b) “the certification by any person of such [an electronic] signature” is admissible as evidence of authenticity. Section 7(3) clarifies that a person certifies a signature by confirming that “the signature, a means of producing, communicating or verifying the signature, or a procedure applied to the signature” is a valid means of signing.

    59 S Mason, Electronic Signatures in Law (3rd ed 2012) pp 265 to 266.

    60 With the appropriate software, users can generate their own key pairs. This avoids the difficulties in distributing key pairs securely; however, it does not remove the need for the certification authority to certify that the key pair belongs to the user: S Mason, Electronic Signatures in Law (3rd ed 2012) pp 265 to 266 and 274.

    61 S Mason, Electronic Signatures in Law (3rd ed 2012) pp 284 to 285.

    have indicated that there is little demand for electronic wills. While it would be possible for the state to create a counterparty system, there is no clear cost benefit to the state in doing so unless the state could reduce the cost of probate, executors costs and the like. There may be a reason for the state to offer a system for registering Lasting Powers of Attorney when a person chooses to execute one given that registration can prevent the court being approached later on to make decisions about an incapacitated person. Registering LPAs electronically might realise a genuine cost saving for the state and the parties concerned.

    
    

81. Secondly, any PKI system used to sign electronic wills would have to offer long term security. Authentication in commercial transactions generally arises at the time of the transaction (or relatively shortly afterwards). In a wills context, it is possible that the authenticity of a signature will have to be assessed many years in the future. One important question is whether an electronic signature (purportedly) executed in 2017 can be adequately authenticated in 2057. While the ability to analyse the authenticity of a 2017 wet ink signature may well improve, the ability to forge a 2017 electronic signature is likely to develop as time progresses and technology advances.

    
    

82. At present, it is not clear that certification authorities retain information relating to identity certificates and key pairs long enough for them to operate in the timeframes necessary for wills. In order for digital signatures to be used for wills, certification authorities would have to keep historical point-in-time information for all of the identity certificates, so that decades after being used to electronically execute the will a private key could be established to have been valid at the moment the will was signed.62

    
    

83. Thirdly, some work would be required to make signing a will using PKI technology convenient for testators. In order to obtain an identity certificate, individuals will generally have to prove their identification to a certification authority and as a matter of best practice will have to meet face-to-face in addition to providing other evidence of their identity. For many testators, signing a will by hand might seem much easier.

    
    

84. One solution to this problem might be for solicitors to sign wills on behalf of testators using their own existing digital signatures. However, to authorise the solicitor to do so, and to comply with professional regulations, clients will likely need to authorise the solicitor to do so – usually by signing an authorisation form by hand.63

    
    

85. Fourthly, the private keys used in PKI systems must be safely stored:

    
    

    the private key of each person is rather difficult to memorize, they are most often stored in computers. If the computer is not kept in a secure location, the contents of the private key may be vulnerable. This heightens the necessity of maintaining the security of the private key and protecting it from intruders. However, it should be noted that this weakness of the digital signature is also common to most other forms of electronic signatures. The password or the PIN face similar security problems.

    
    

    
    

    62 As well as to establish liability if the identity certificate proves to be inaccurate or the private key was compromised: see S E Blyth, “Finland’s Electronic Signature Act and E-Government Act: Facilitating security in e-commerce and online public services” (2008) 31 Hamline Law Review 443, 461 to 462.

    63 See Land Registration for the Twenty-First Century: A Conveyancing Revolution (2001) Law Com No 271, para 13.62.

    Therefore, with good security policies and procedures, this disadvantage can be minimised.64

    
    

86. In a wills context, testators would need to comply with rules governing their use and storage to prevent wrongful use of private keys. There may be challenges implementing and enforcing such rules in an individual and personal context, rather than a professional or organisational context where sanctions can be more easily applied to individuals.

    
    

    Conclusions

87. In our view, the following points are the most important policy considerations that emerge from our discussion of electronic signatures.

    
    

    1. While there may be many electronic methods that are at least as secure as handwritten signatures, it appears that rudimentary electronic signatures – typed names and digital images of handwritten signatures – are easily copied and would not sufficiently protect testators from fraud.

       
       

    2. While forgery is less of a concern with regard to more sophisticated electronic signatures, we note that passwords, PINs and keys could be compromised in other ways; by users sharing their details, or by undue influence. This is a particular concern for electronic signatures used to authenticate wills because any system must take account of the position of vulnerable testators.65

       
       

    3. We also note that the introduction of electronic wills is going to require infrastructure to i) provide a secure means by which testators can make wills and

       ii) maintain the integrity and security of electronic wills over time. That infrastructure may be provided by commercial entities or by the Government and it may be created specifically for wills, or will-making could piggy-back on other systems (such as Verify).

       
       

       
       

       
       

       64 S E Blyth, “Finland’s Electronic Signature Act and E-Government Act: Facilitating security in e-commerce and online public services” (2008) 31 Hamline Law Review 443, 451.

       65 See Chapter 7.

       STORAGE OF ELECTRONIC WILLS

       
       

88. The possibility of electronic wills raises questions about storage. There are many differences between storing data electronically and storing data in paper form. While paper documents may be lost, stolen or destroyed, electronic documents are susceptible to different risks such as obsolescence or hacking.

    
    

89. The issue of obsolescence is particularly pertinent with regard to fully electronic wills, which would have to be stored over long periods of time. There is no standard format for electronic files; many different forms are used, and they are not universally compatible. Moreover, hardware and software undergo continuous development, a process that renders old forms obsolete. Hardware physically deteriorates causing a particular problem for portable media storage devices. Preserving electronic documents over long periods requires documents to be migrated, or converted into new formats so they can remain readable. It is difficult to “future proof” an electronic document.66 Electronic documents must be maintained in a way that physical documents need not be.

    
    

90. Stakeholders have also raised concerns about the wide variety of formats fully electronic wills could take. Stakeholders have suggested to us that the benefits of only one form of will being acceptable – a paper will – are simplicity and certainty; fully electronic wills could make it more difficult to establish whether a person has a will or whether a will was the person’s last will.

    
    

91. There is also the issue of hacking. The storage of wills in electronic form may provoke different types of fraud or fraud on a larger scale than paper wills do. Online systems cannot be made absolutely secure against intrusion, and some of the most secure systems in the world have been hacked. Fully electronic wills could prove to be a tempting target and we note that hackers have recently attacked Government computer systems, threatening to destroy data unless a ransom was paid.67

    
    

92. The difficulties and vulnerabilities of storing wills could be mitigated if the task were undertaken by the Government or by a Government authorised body. A body responsible for storing wills could determine (and standardise) the format of fully electronic wills; ensure that there is only one, authentic, version of each fully electronic will (if necessary); take responsibility for migrating fully electronic wills to new formats in order to ensure they continue to be accessible; and put robust security mechanisms in place to reduce vulnerability to hacking.68

    
    

    
    

    
    

    66 G W Beyer and C G Hargrove, “Digital wills: Has the time come for wills to join the digital revolution?” (2007) 33(3) Ohio Northern University Law Review 865, 894 to 895; Members of the Succession Law Reform Project, Wills Estates and Succession: A Modern Legal Framework (British Columbia Law Institute Report No 45, June 2006) p 32; K Melnychuk, “One click away: the prospect of electronic wills in Saskatchewan” (2014) 77 Saskatchewan Law Review 27, 41.

    67 See S S Boddery, “Electronic wills: Drawing a line in the sand against their validity” (2012) 47 Real Property, Trust and Estate Law Journal 197, 206 to 207. On the WannaCry ransomware attacks, see bbc.co.uk/news/health-39899646 (last visited 17 May 2027).

    68 See South Australian Law Reform Institute, Losing it: State scheme for storing and locating wills (Issues paper 6, July 2014) paras 62 to 65, 87 and 91.

93. Centralised electronic storage could produce considerable benefits, especially if joined up to the admission of the will to probate after the testator’s death. Such a system would reduce the potential for wills to be lost and increase the efficiency of admitting wills to probate. However, we have not seen any appetite or evidence of the immediate need for such a development. Moreover, it is not clear that there is any appetite within Government to create such a system. There may be a commercial incentive to provide a system of fully electronic wills, but that is not a matter we are in a position to assess fully.

    
    

94. The prospect of fully electronic wills raises a fundamental question: what is the will? At present, the answer is straightforward. A will is a single, physical document. If wills were stored electronically, multiple copies might exist, each as authentic as the next. In the digital realm, what is relevant is data, not the particular hardware on which data is stored. A shift away from there being one identifiable physical will might have practical consequences.

    
    

95. Under the Wills Act 1837, there is a notion of a single original will; although many documents can together constitute a single will, there is only one “will”.69 This implicit requirement relates to revocation by destruction: if there are multiple copies of a fully electronic will (for example, stored on both the testator’s and a witness’s personal computers), and the testator has deleted one, privately, has the will been revoked?70 It is possible that technology could be used to ensure that only one authoritative electronic copy of a will exists. However, it is not clear whether this technology yet exists and requiring an authoritative electronic copy appears to have hampered the effect of electronic wills legislation in Nevada.71

    
    

96. One plausible way to address this problem would be to enact legislation governing electronic wills that excludes the notion of a single original will. Doing so could remove the ability of a testator to revoke a will by destruction. However, having copies of electronic documents may be unavoidable. It might even be helpful to have copies made, to back up data, for example. Below, we ask for consultees’ views about revocation by destruction and the notion of a single original will in the context of electronic wills.

    
    

97. A further practical consequence of the recognition of electronic wills is that a mechanism will have to be put in place to admit such wills to probate. That system may differ according to the form that electronic wills take. Because there is such a variety of potential forms and the solution will require technical rather than legal expertise, we are not in a position to consult on potential systems in this Paper. Nevertheless, it is important to note that if electronic wills are to be admitted to probate as well as physical wills, the manner in which wills are received by the Probate Service needs to be reconsidered.

    
    

    
    

    69 R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) p 39.

    70 See Wills Act 1837, s 20; Members of the Succession Law Reform Project, Wills Estates and Succession: A Modern Legal Framework (British Columbia Law Institute Report No 45, June 2006) pp 31 to 32. See also Uniform Law Conference of Canada, Proceedings on the Eighty-third Annual Meeting (Toronto, 2001), Appendix E, Electronic Wills, W H Hurlburt QC, “Electronic wills and powers of attorney: has their day come?” paras 56 to 60.

    71 Commentators have identified the requirement that there is a single authoritative copy of the will as one of the reasons the Nevada electronic wills statute (Nevada Revised Statutes, s 133.085) has not been used in practice: G W Beyer and C G Hargrove, “Digital wills: Has the time come for wills to join the digital revolution?” (2007) 33(3) Ohio Northern University Law Review 865, 891; S S Boddery, “Electronic wills: Drawing a line in the sand against their validity” (2012) 47 Real Property, Trust and Estate Law Journal 197, 199 to 200.

    
    

    
    

    VIDEO WILLS

    
    

98. So far, our discussion in this chapter has assumed that electronic wills, including fully electronic wills, would consist of words in visible form. We now consider whether it should be possible to create a legally valid will by a video recording. A video will would be a fully electronic will that exists only as a digital file. It would be different from any other form of fully electronic will that we have considered, however, it would not consist (as the current legislation explains) of “words in visible form” and would not be “signed”.

    
    

99. In addition to being the will and providing evidence of execution, it has been suggested that a video recording could also provide evidence that the testator had capacity at the time of making the will and was not subject to undue influence. Potentially, witnesses could continue to play the same role they do now by appearing in the video with the testator, stating their names and possibly that they witnessed the will.72

    
    

100. It has also been suggested that video recordings of the execution of a paper will can evidence due execution of the will entered for probate, as well as capacity and the absence of undue influence. Because this suggestion continues to require a paper will and so relates to evidence rather than formalities, we consider it separately, below.

     
     

101. In many respects, video recordings seem ideally suited to wills. An audio and visual recording of the testator stating his or her testamentary dispositions would be a recording of a unilateral declaration. The testator’s voice and image are directly linked to his or her identity; they require no counter party to create data to establish a link between the two and later confirm the link is present. Like handwritten signatures, a court could rely on characteristics personal to the testator to establish the authenticity of the image and sound, and therefore the will. Without the need for a signature, video wills side-step the difficulties we have discussed about the use of electronic signatures in the wills context.

     
     

102. Nevertheless, it appears to us that there are difficulties with video wills. Wills are technical documents in which it is important that language is used precisely. There is a

     
     

     
     

     
     

     72 See eg J Banks, “Turning a won’t into a will: revising will formalities and e-filing as permissible solutions for electronic wills in Texas” (2015 to 2016) 8 Estate Planning and Community Property Law Journal 291, 313; J C Grant, “Shattering and moving beyond the Gutenberg Paradigm: the dawn of the electronic will” (2008 to 2009) 42 University of Michigan Journal of Law Reform 105, 135.

     risk of a spoken will being incomplete or open to interpretation unless carefully scripted. There is also a risk, which it is beyond our expertise to assess, that computer-generated imagery (CGI), editing or dubbing could be used to create a convincing forged video will.

     
     

103. Witnesses could continue to play a protective role. Arguably, witnesses might be less necessary for video wills than paper wills, given the additional evidence in relation to undue influence that a video will could provide. However, coercion could easily occur off-camera or before the time that the will is “executed” in the video. For these reasons, as well as our concerns about forgery, we think that witnesses would still be required.

     
     

104. Video wills also raise the practical difficulties about storage of digital files that we have considered above.73 There is a risk that a video will made 20 years ago, stored on obsolete hardware and recorded in a format no longer used, would not be viewable now.

     
     

105. Accordingly, a video recording may be better not as a replacement to a will, but in addition to a written will as evidence of the testator’s intentions and circumstances surrounding its making and execution.

     
     

106. In our discussion above, we have provisionally proposed the introduction of an enabling power to allow electronically executed and fully electronic wills to be introduced in the future. Video wills would necessarily be fully electronic wills. In light of the distinct issues raised by video wills, we would like to hear from consultees separately as to whether this form of will should be considered in any enabling power.

     
     

     
     

     The use of video evidence in relation to wills

107. A separate issue arises as regards the use of video recordings as evidence in contested probate cases.

     
     

108. Some jurisdictions have passed legislation that specifically allows video recordings of the execution of a will to be used as evidence of a testator’s capacity and intention as well as the authenticity and proper execution of the will. Some commentators view the legislation as a positive step towards electronic wills.74

     
     

109. We agree that a video recording of the execution of the will, and indeed a recording of any discussion of the will and expressions by the testator of his or her testamentary

     
     

     
     

     73 See para 6.88 above.

     74 J C Grant, “Shattering and moving beyond the Gutenberg Paradigm: the dawn of the electronic will” (2008 to 2009) 42 University of Michigan Journal of Law Reform 105, 108 to 109; G W Beyer and C G Hargrove, “Digital wills: Has the time come for wills to join the digital revolution?” (2007) 33(3) Ohio Northern University Law Review 865, 884 and 885.

     intent, may be useful. We do not, however, think it is necessary for a specific provision in a new Wills Act to allow for such evidence: we think that the admissibility of video evidence can be determined by the ordinary rules of evidence.75

     
     

     ELECTRONIC WILLS AND A DISPENSING POWER

     
     

110. In Chapter 5, we considered the introduction of a dispensing power. The effect of a dispensing power would be to enable the court, on a case by case basis, to accept as valid a will that has not been properly executed. There are different forms that a dispensing power may take.

     
     

111. In other jurisdictions, electronically executed and fully electronic wills have been admitted to probate on the basis of dispensing powers.76 Documents typed on computers and mobile phones have been admitted to probate,77 as have videos78 and a will “handwritten” using a stylus on a tablet.79 These cases often concern the wishes of testators who were suffering serious illness or who committed suicide.

     
     

112. We note that other law reform bodies have recommended that dispensing powers be drawn widely enough to include electronic documents. Doing so effectively enables electronic wills to be admitted to probate on a case-by-case, discretionary basis thereby giving greater effect to testators’ intentions. However, David Horton has recently expressed scepticism about the value of extending a dispensing power to electronic documents. He is concerned that the practice could lead to more disputes, higher costs and greater inconvenience in probate cases.80 In Chapter 5, above, we addressed the question in greater detail and asked consultees whether a dispensing power should be able to be used in respect of electronic documents.

75 J R Martyn, A Learmonth, J E Gordon, C Ford and T Fletcher, Theobald on Wills (18th ed 2016) para 12-001.

76 Taylor v Holt (2003) 134 SW 3d 830 (Tennessee Court of Appeal – typed name, dispensing power). S S Boddery, “Electronic wills: Drawing a line in the sand against their validity” (2012) 47 Real Property, Trust and Estate Law Journal 197, 204 to 205. See also Re Castro (2013) Probate Div Case No 2010ES00140 (Lorain Country, Ohio, Court of Common Pleas).

77 Rioux v Coulombe (1996) 19 ETR (2d) 201 (Quebec Superior Court) (a document saved on a computer disk), cited in Members of the Succession Law Reform Project, Wills, Estates and Succession: A Modern Legal Framework (British Columbia Law Institute Report No 45, 2006) p 32; Macdonald v The Master (2002)

(5) SA 64(N) (South Africa) (a document saved on the testator’s work computer), cited in S S Boddery, “Electronic wills: Drawing a line in the sand against their validity” (2012) 47 Real Property, Trust and Estate Law Journal 197, 204; Re Yu [2013] QSC 322 (Supreme Court of Queensland) (typed document using an app on the testator’s mobile phone).

78 Mellino v Wnuk [2013] QSC (Supreme Court of Queensland), In the Estate of Wilden (Deceased) [2015] SASC 9 (Supreme Court of South Australia).

79 Re Castro (2013) Probate Div Case No 2010ES00140 (Lorain Country, Ohio, Court of Common Pleas).

80 See D Horton, “Tomorrow’s Inheritance: The Frontiers of Estate Planning Formalism” (forthcoming) Boston College Law Review, Vol. 58.

Chapter 7: Protecting Vulnerable Testators: Knowledge and Approval and Undue Influence

INTRODUCTION

1. In Chapter 1, we noted the importance of testamentary freedom. We have seen that testamentary freedom is supported by formality requirements that must be met for a will to be valid and by ensuring that the testator has the mental capacity necessary to execute a will. To ensure testamentary freedom, however, it is not enough to show that a will has been properly executed by a testator with capacity to do so. The law must also ensure that the will truly reflects the wishes of the testator, and that those wishes were freely decided by the testator. As Scarman J (as he then was) explained in In the Estate of Fuld:

   
   

   Lord Penzance once said of the issues of testamentary capacity, knowledge and approval, undue influence and fraud, that they very often merge into one another.1

   
   

2. In this chapter, we consider two means by which the law protects testamentary freedom: “knowledge and approval” and “undue influence”. We consider these two topics together because the concepts are applied in closely related circumstances. We consider that any proposals for law reform made in respect of these doctrines need to be considered alongside each other in order to understand their effect.

   
   

3. The question that lies at the heart of our examination of knowledge and approval and undue influence is how the law can best protect testators from financial abuse, where a person has testamentary capacity but is in a vulnerable situation. A testator may be vulnerable because he or she has been subjected to a degree of influence that he or she has been unable to resist. Additionally, the testator’s susceptibility to pressure may be the consequence of dementia or other mental or physical conditions that leaves the testator in a vulnerable position. Another way of looking at the issues we consider in this chapter is to say that the content of the testator’s will raises a suspicion that it might not represent the testator’s true intentions. It is through protecting the vulnerable against abuse that the law upholds testamentary freedom.

   
   

4. A will may also be set aside where it has been procured through fraud – where a false representation has been made to the testator. We do not discuss fraud as a ground for setting aside a will in this chapter as we are not aware of any particular problems or concerns that exist with the application of the law of fraud in the context of wills. We do, however, briefly refer to a specific type of fraud, known as fraudulent calumny, which is a type of fraud closely related to undue influence. We invite consultees to explain any personal experience of fraud in a wills context and to let us know if they think that the law of fraud, as it relates to wills, requires reform.

   
   

   
   

   1 [1968] P 675 at 722. The case was heard over 93 working days by Mr Justice Scarman from 8 February to 27 July 1965, during which time the Law Commissions Act 1965, providing for the establishment of the Law Commission, was enacted. Mr Justice Scarman was the first Chair of the Commission.

5. In this chapter we first outline the current law of knowledge and approval and undue influence and then consider the overlap in the application of the principles and their relationship with each other and with the test of capacity. We then consider the role of the law in these areas and make recommendations for reform.

   
   

   KNOWLEDGE AND APPROVAL

   
   

6. In addition to the requirement for a testator to have the necessary testamentary capacity to make a will, for that will to be valid a testator must also know and approve of the contents of his or her will. There is a logical link between capacity and knowledge and approval, although each asks a different question. The test of capacity asks whether the testator had the ability to understand that he or she is executing a will and the effect of doing so. The requirement of knowledge and approval focuses on whether the testator actually knows and understands the content of the document that is being executed as a will. Where that knowledge and approval is lacking the will is invalid. There is no requirement of knowledge and approval in respect of a statutory will, as those wills are executed by the Court of Protection for testators who lack testamentary capacity.2

   
   

   The meaning of knowledge and approval

7. In Ark v Kaur it was explained that:

   
   

   Knowledge and approval of the contents [of a will] means only that the testator knows that he is making a will, knows what the terms of it are, and intends that those terms should be incorporated into and given effect by the will.3

   
   

8. This interpretation of knowledge and approval reflects that given in the contemporaneous decision in Perrins v Holland.4 There, the Court of Appeal explained that “knowledge and approval requires no more than the ability to understand and approve choices that have already been made”.5

   
   

9. On occasion, however, the courts have indicated that knowledge and approval goes further than an appreciation of the contents of the will. In Hoff v Atherton, Lord Justice Chadwick said that “it may well be that where there is evidence of a failing mind … the court will require more than proof that the testator knew the contents of the document which he signed”.6 Lord Justice Chadwick suggested the court:

   
   

   may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect.7

   
   

   
   

   2 Statutory wills are considered in Chapter 3.

   3 [2010] EWHC 2314 (Ch), (2010) SJLB 34 at [19]. See also Fuller v Strum [2001] EWCA Civ 1879. [2002] 1

   WLR 1097, at [59], approved in Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380, at [14].

   4 Perrins v Holland [2010] EWCA Civ 840, [2011] Ch 270.

   5 Above, at [64].

   6 Hoff v Atherton, [2004] EWCA Civ 1554

   7 Above, at [64].

10. This interpretation suggests that knowledge and approval requires proof of the same things necessary to establish testamentary capacity. In Perrins v Holland, however, the court doubted that was Lord Justice Chadwick’s intention.8

    
    

11. Knowledge and approval “requires decision, not mere assent”.9 It does not require knowledge and approval of the legal effects of the will,10 and nor does the testator have to understand the legal terminology used in the will, or be aware of other means of achieving his or her goal.11

    
    

    Timing

12. Knowledge and approval must be present at the time the will is executed.12 There is an exception allowing knowledge and approval to be present at the time when a testator instructs a professional to write his or her will, rather than at the time of execution. This exception, which mirrors the rule in Parker v Felgate in relation to capacity,13 applies where “… [the testator] knew what he was doing [in executing the will] and thus had sufficient mental capacity to carry out the juristic act which that involves”.14 Therefore, if the professional follows the testator’s instructions and the testator knows on execution that the professional has prepared the will in accordance with his or her instructions, knowledge and approval can be satisfied.15

    
    

13. In our discussion of capacity we have noted the differing views of the rule in Parker v Felgate, but we have provisionally proposed that the rule should be retained. On the one hand, the rule deprives the testator the right to check at the point of execution of the will that the will carries out his or her instructions. On the other hand, however, the rule can ensure the testator’s wishes are carried into effect where his or her capacity is in decline. Similar opposing views may be expressed on the operation of the equivalent principle in respect of knowledge and approval.

    
    

    Evidence and presumption

14. The evidence produced as to knowledge and approval must relate to the preparation and execution of the will.16 It is possible to have knowledge and approval for only part of a will.17

    
    

15. In assessing knowledge and approval it is clear that the court will place some emphasis on the fact that a testator with testamentary capacity has correctly executed the will. In

    
    

    
    

    
    

    8 Perrins v Holland [2010] EWCA Civ 840, [2011] Ch 270, AT [64].

    9 Key v Key [2010] EWHC 408 (Ch), [2010] 1 WLR 2020, at [116].

    10 Morrell v Morrell (1882) 7 PD 68 at 70 to 71.

    11 Greaves v Stolkin [2013] EWHC 1140 (Ch), [2013] WTLR 1793.

    12 Guardhouse v Blackburn (1886) 1 P & D 109 at 116.

    13 See para 2.89 above.

    14 Perrins v Holland, [2010] EWCA Civ 840; [2011] Ch 270 at [55].

    15 Re Flynn [1982] 1 WLR 310 at 319 to 320; In the Estate of Wallace [1952] 2 TLR 925.

    16 Re R [1951] P 10.

    17 Fuller v Strum [2001] EWCA Civ 1879, [2002] 1 WLR 1097, at [36].

    the leading Court of Appeal case of Gill v Woodall, whist rejecting the idea that a formal evidentiary presumption of knowledge and approval will be raised, Lord Neuberger said:

    
    

    As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testatrix, raises a very strong presumption that it represents the testator’s intentions at the relevant time.18

    
    

16. Where a will is challenged on the basis that the testator did not know and approve of its contents, the burden of proving knowledge and approval will be on the person propounding the will.19 As Lord Neuberger’s statement suggests, it may be sufficient to show that the will was prepared by a professional and read over to the testator. It may, however, be necessary to show that the testator heard and understood the will.20 Particular evidence of knowledge and approval may be required where the testator is blind,21 illiterate,22 deaf or unable to talk,23 or where the will was signed on the testator’s behalf.24

    
    

    The two stage and one stage approaches to knowledge and approval

17. The approach of the courts where a will is challenged for want of knowledge and approval previously consisted of two distinct stages. First, the court would consider if its suspicions were aroused, which is tantamount to asking whether an initial case that the testator did not know or approve the contents of the will had been shown.25 The court’s suspicions would be aroused, for example, where a beneficiary under a will helped prepare it,26 including where the solicitor who prepares a will is a beneficiary under it.27 Secondly, the court would then consider whether those suspicions could be addressed by the beneficiary providing an explanation for the apparently suspicious circumstances.

    
    

18. Commenting on case law in which the two-stage test was applied, Barbara Rich said

    
    

    
    

    18 [2010] EWCA Civ 1430, [2011] Ch 380 at [14].

    19 Barry v Butlin (1838) 2 Moo PC 480 at 482.

    20 Franks v Sinclair [2006] EWHC 3365.

    21 Non-Contentious Probate Rules 1987, r 13.

    22 Non-Contentious Probate Rules 1987, r 13.

    23 Re Geale’s Goods (1864) 3 Sw & Tr 431.

    24 Non-Contentious Probate Rules 1987, r 13.

    25 Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380, at [21].

    26 Barry v Butlin (1836) 2 Moo PC 480, applied in Re Wilson (deceased) [2013] EWHC 499 (Ch).

    27 Cushway v Harris [2012] EWHC 2273 (Ch). The Law Society has provided guidance on proper conduct for solicitors where clients wish to leave them a gift in their will: Law Society, “Preparing a will when your client is leaving a gift for you, your family or colleagues” (20 January 2015), available at http://www.lawsociety.org.uk/support-services/advice/practice-notes/preparing-wills-when-your-client-is- leaving-a-gift-for-you-your-family-or-colleague/ (last accessed 14 June 2017).

    The scope of the court’s inquiry is relatively narrow and quite striking suspicions may be dispelled by relatively limited yet cogent and inherently credible evidence.28

    
    

19. The two stage test of knowledge and approval was applied, for example, in Fuller v Strum.29 There, the claimant (a family friend) was a beneficiary under a will and had been closely involved in its execution. The will made a number of gifts before leaving the residuary of the estate “very grudgingly” to the testator’s adopted son. Referring to the son, the will stated “I hate him like poison. That Irish bastard”. While the suspicions of the court were roused, the Court of Appeal held that the claimant had discharged the burden of dispelling the suspicion. The gift to him was modest, and the language used in the will to refer to the son reflected the poor relationship the testator had with him at the time the will was executed.

    
    

20. This two stage approach was, however, rejected by Lord Neuberger in Gill v Woodall.30 In that case the judge at first instance had held that the testator, Mrs Gill, knew and approved of the contents of her will, under which her property passed to the RSPCA, to the exclusion of the claimant, her daughter. The judge had, however, set aside the will for undue influence. On appeal the Court of Appeal held that the will was invalid for want of knowledge and approval. Mrs Gill, who suffered from severe agoraphobia, had executed a mirror will along with her husband who had died before her. Lord Neuberger explained that he preferred a one stage approach to knowledge and approval. Under this approach, derived from the unreported decision of Mr Justice Sachs in Re Crerar, the court should

    
    

    consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.31

    
    

21. The one stage approach has been endorsed in a number of subsequent cases, though not universally.32

    
    

22. In Gill v Woodall Lord Neuberger suggested that whichever approach is adopted, “the answer should be the same”.33 Opinion has differed on whether, in fact, the change of approach has affected the outcome of cases. Writing shortly after the decision in Gill, Ruth Hughes echoed Lord Neuberger’s assessment.34 But writing in 2015, Penelope

    
    

    
    

    28 B Rich, “What does “want of knowledge and approval” mean in the 21st century?” [2008] 5 Private Client Business 303.

    29 [2001] EWCA Civ 1879, [2002] 1 WLR 1097.

    30 [2010] EWCA Civ 1430, [2011] Ch 380.

    31 Above, at [22], citing Re Crerar (unreported) (1956) 106 LJ 694, p 695, which decision was followed in re Morris [1971] P 62, p 78.

    32 Hawes v Burgess [2013] EWCA Civ 94, [2013] WTLR 453.

    33 [2010] EWCA Civ 1430, [2011] Ch 380, at [23].

    34 R Hughes, “Probate: want of knowledge and approval” [2011] Elder Law Journal 122.

    Reed QC suggested that it has in fact become easier to challenge a will on the basis of want of knowledge and approval.35

    
    

23. In Gill, there were no typically suspicious circumstances that might raise an issue of want of knowledge and approval. Nevertheless, the judge at first instance, applying the two stage approach, considered that there was an initial case of want of knowledge and approval, but went on to hold that the beneficiary under the will rebutted the initial case. The beneficiary under the will (the RSPCA) was not involved in the making of the will, and the will was explained to Mrs Gill by her solicitor.

    
    

24. However, the Court of Appeal was satisfied that in the unusual circumstances of the case, Mrs Gill’s agoraphobia precluded her from being able to know and approve the contents of her will when it was read out to her in her solicitor’s office. Her agoraphobia meant that she was reluctant to leave the farm, which was her home, or to be left alone at the farm, and was severely socially withdrawn. The impact of her mental condition on her understanding “would not even have been appreciated by most doctors, let alone a solicitor reading a draft will to her, especially if he had not met her before”.36 At the time of the meeting, expert evidence demonstrated that Mrs Gill

    
    

    would have experienced anxiety of such severity that her thoughts would have been dominated by an impulse to escape back to the safety of her house and she could not have followed or understood what she was doing or known or understood the terms and effect of her will.37

    
    

    The effect of the Court of Appeal upholding the judge’s order that Mrs Gill’s will was invalid was that Mrs Gill was treated as having died intestate and her daughter inherited her estate.38

    
    

25. In Hawes v Burgess it was held that there was a lack of knowledge and approval where a will procured by one of the testator’s children excluded another child for a reason which was untrue, even though the solicitor read out the will to the testator before she signed it.39 Penelope Reed takes the view that:

    
    

    While the Court of Appeal in Gill made it clear the facts of the case were exceptional, one is left with a feeling that a different approach will make it easier in the right cases to plead want of knowledge and approval successfully and the number of cases where the plea has succeeded are increasing. It is clear that the involvement of the beneficiary in the will making process is not a requirement for the challenge to be invoked.40

    
    

    
    

    35 P Reed, “Capacity and want of knowledge and approval” in B Häcker and C Mitchell (eds) Current Issues in Succession Law (2016) para 3.4.

    36 [2010] EWCA Civ 1430, [2011] Ch 380, at [65].

    37 [2010] EWCA Civ 1430, [2011] Ch 380, at [44].

    38 [2010] EWCA Civ 1430, [2011] Ch 380 at [10].

    39 [2013] EWCA Civ 94, [2013] WTLR 453.

    40 P Reed, “Capacity and want of knowledge and approval” in B Häcker and C Mitchell (eds) Current Issues in Succession Law (2016) para 3.11.

26. There have, however, been a number of recent cases, including McCabe v McCabe41 and Burns v Burns42 where challenges on grounds of lack of knowledge and approval have failed. In Sharp v Hutchins43 it was reaffirmed that a surprising result under a will is not in and of itself enough to demonstrate a lack of knowledge and approval, especially where the testator was “an educated man, with full capacity who had drawn up previous wills”, and where the will itself was “short and easy to understand”.44 Cook notes that this case demonstrates the importance of explaining in your will why you have left your estate in a certain way.45

    
    

    Mistakes

27. The discussion of knowledge and approval so far has focused on a situation where the challenge to the will for want of knowledge and approval is based on the circumstances in which the will was executed, or mental state of the testator during the process of the will being made. A will may also be held to be invalid for want of knowledge and approval because of a mistake made by the testator or the person preparing the will for the testator. Want of knowledge and approval may be found, for example, where the will includes or omits particular words, or where the testator has mistakenly signed the wrong will.46 Want of knowledge and approval will not invalidate a will, however, where the mistake is as to the legal effect of the will, rather than what the will says.47

    
    

28. Where words have been erroneously entered into a will and therefore the testator did not know and approve of the clause on grounds of mistake, there are three ways in which the court can assist:

    
    

    1. The court has the power to exclude words from probate of which the testator did not have knowledge and approval,48 except for where this would change the meaning and effect of the remaining will.49

       
       

    2. The will can be rectified.50

       
       

    3. The courts may interpret a will to remove the effect of a mistake.

       
       

       UNDUE INFLUENCE

       
       

29. Where someone makes a gift, or enters into a contract, but was not acting under his or her own free will, English law has a number of doctrines that operate to set aside the

    
    

    
    

    41 [2015] EWHC 1591 (Ch).

    42 [2016] EWCA Civ 37, [2016] WTLR 755.

    43 [2015] EWHC 1240 (Ch), [2015] WTLR 1269.

    44 Above, at [46].

    45 C Cook, “An unexpected beneficiary”, available at http://www.privateclientadviser.co.uk/blog/unexpected- beneficiary.

    46 As happened in Marley v Rawlings [2014] UKSC 2, [2015] AC 129. On which, see Chapter 9.

    47 J R Martyn, A Learmonth, J E Gordon, C Ford and T Fletcher, Theobald on Wills (18th ed 2016) para 3-025.

    48 In Re Morris, deceased [1970] 2 WLR 865.

    49 Marley v Rawlings [2014] UKSC 2, [2015] AC 129.

    50 See Chapter 9.

    gift or contract. The law of undue influence one such doctrine. Gifts may also be set aside where they are have been procured by fraud (as we have noted in the introduction to this chapter), duress and misrepresentation.

    
    

30. Undue influence enables gifts and contracts to be set aside where the decision to make the gift, or enter into the contract, has been made as a result of unlawful pressure being applied. Gifts and contracts procured through undue influence are voidable and can therefore be set aside where the person subject to undue influence chooses to do so.51

    
    

31. Where a will is executed as a result of undue influence, the will is void and therefore has no effect.

    
    

32. The British Columbia Law Institute explains undue influence as follows:

    
    

    Undue influence consists of imposing pressure that causes a person to perform some legal act, such as making a will, that does not reflect the true wishes or intentions of that person, but rather those of the influencer.52

    
    

33. It is important to note that undue influence is concerned with “unlawful” pressure, as not all pressure is unlawful. The law recognises, for example, that it is perfectly legitimate for a person to seek to persuade a testator to make a gift to them in his or her will. As Sir J P Wilde explained in Hall v Hall:

    
    

    Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate and may be fairly pressed on a testator.53

    
    

34. The line between legitimate persuasion and undue influence is not always clear. There is a wide spectrum between egregious instances of undue influence and the innocent appeals of relatives seeking to curry favour with the testator. The line is crossed when the testator would say “this is not my wish, but I must do it”.54

    
    

35. The law of undue influence that applies in respect of testamentary gifts is, however, different from that applied to lifetime gifts or contracts. The effect of this difference is that it is more difficult for a will to be set aside on the grounds of undue influence than it is for a lifetime gift or a contract. In order to understand the difference it is helpful briefly to explain the operation of the equitable doctrine of undue influence that applies to lifetime gifts and contracts before examining testamentary undue influence.

    
    

    Equitable Undue Influence

36. Discussions of undue influence commonly distinguish between “actual” and “presumed” undue influence, but it is important to note that there is in fact a single doctrine. The central question for the court, in all cases, is whether a transaction was brought about

    
    

    
    

    51 Where that person has died, the gift or contract may be set aside on an application by a third party. For example, see Tociapski v Tociapski [2013] EWHC 1770 (Ch), [2013] WTLR 1821.

    52 British Columbia Law Institute, Report No 61 (2011) p 5.

    53 (1865 - 69) 1 P & D 481, p 482.

    54 Wingrove v Wingrove (1885) 11 PD 81, by Sir James Hannen. See further, M Allardice, “The vulnerable testator and undue influence” [2017] Elder Law Journal 10, at p 12.

    by the exercise of undue influence, which is a question of fact.55 Whether undue influence is actual or presumed depends upon how that question has been answered.

    
    

37. In a case of actual undue influence, the party alleging undue influence is normally required to prove four elements of undue influence, that:

    
    

    1. “the other party to the transaction... had the capacity to influence the complainant;

       
       

    2. the influence was exercised;

       
       

    3. its exercise was undue; and

       
       

    4. that its exercise brought about the transaction. 56

       
       

38. In a case of presumed undue influence, the ability of one party to influence the other, and the fact of undue influence, may both be presumed. The operation of presumed undue influence was set out authoritatively by the House of Lords in Royal Bank of Scotland v Etridge (No 2).57 As explained by Lord Nicholls in that case, a presumption of undue influence is raised where parties are in a relationship of influence and a transaction calls for explanation. Where the presumption is raised, the onus lies on the party seeking to enforce the contract (or retain the gift) to show that he or she did not exert undue influence.

    
    

    Relationships of influence

39. In certain special classes of case, it is unnecessary to analyse the specific facts to determine whether the parties are in a relationship of influence. The nature of the relationship itself is taken as definitive evidence that a relationship of influence exists. In other words, the relationship gives rise to an irrebuttable presumption of influence (not undue influence, as all that is being presumed here is that one party had the capacity to influence the other).

    
    

40. A presumption that there is a relationship of influence is raised where a gift is made:58

    
    

    1. by a child to a parent59 or guardian;60

       
       

    2. by a beneficiary to a trustee;

       
       

       
       

       55 Royal Bank of Scotland Plc v Etridge (No.2) [2001] UKHL 44; [2002] 2 AC 773, at [13].

       56 Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923, 967; H Beale, Chitty on Contracts, para 8-066.

       57 [2001] UKHL 44; [2002] 2 AC 773.

       58 At one time it was thought that there was a relationship of influence where a gift was made from a fiancée to her fiancé but this no longer appears to be the case, see J McGhee QC (ed), Snell’s Equity (33rd ed 2016) para 8-030.

       59 The presumption appears to end a short time after the child reaches 18 years of age: Re Pauling’s Settlement Trusts (No 1) [1964] Ch 303, at p 337. The length of time for which the presumption remains after a child reaches majority (at the time of the case, 21 years of age) was considered by the court to be a question of “fact and degree”.

       60 But not once the wardship and the influence of the guardian has over the child’s actions have come to an end: Hatch v Hatch (1804) 9 Ves 292.

    3. by a follower to a religious or spiritual adviser;

       
       

    4. by a patient to a medical adviser;

       
       

    5. by a client to a solicitor.61

       
       

41. The mere fact the relationship is one of influence does not mean that undue influence is present. The presumption does no more than direct the court to consider whether the gift calls for explanation.

    
    

42. There is no presumption of a relationship of influence between spouses or in gifts made by a parent to a child (or transactions entered into by a parent for the benefit of a child).

    
    

43. Where there is no presumption that the relationship is one of influence, the party alleging undue influence must show that the other party was in a position to influence the person making the gift or entering into the transaction. The vulnerability and dependence of the party who effected the transaction is relevant to the analysis and the mere fact of closeness and mutual trust does not establish a relationship of influence.62

    
    

    Calling for explanation

44. If a relationship of influence exists (whether because it has been established, or is presumed), then the person alleging undue influence must show that the gift or transaction calls for explanation; in other words, that the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship.63

    
    

45. This second requirement performs an essential role. Without it, as Lord Nicholls explained, the law would presume that

    
    

    every gift by a child to a parent … was brought about by undue influence unless the contrary is affirmatively proved. Such a presumption would be too far reaching. The law would be out of touch with everyday life if the presumption were to apply to every Christmas or birthday gift by a child to a parent …. The law would be rightly open to ridicule, for transactions such as these are unexceptionable.64

    
    

46. This requirement therefore ensures that the presumption is raised only (for example) where “the gift is so large as not to be reasonably accounted for on the ground of friendship, charity, or other ordinary motives on which ordinary men act”.65

    
    

    
    

    61 For a discussion of the relationships of influence set out at (1) to (5) see J McGhee QC (ed), Snell’s Equity

    (33rd ed 2016) para 8-024 to 8-029.

    62 J McGhee QC (ed), Snell’s Equity (33rd ed 2016) para 8-031 citing Royal Bank of Scotland Plc v Etridge (No.2) [2001] UKHL 44; [2002] 2 AC 773 and Thompson v Foy [2009] EWHC 1076 (Ch).

    63 Royal Bank of Scotland Plc v Etridge (No.2) [2001] UKHL 44; [2002] 2 AC 773, at [22] to [24] by Lord Nicholls.

    64 Royal Bank of Scotland Plc v Etridge (No.2) [2001] UKHL 44; [2002] 2 AC 773, at [24].

    65 Allcard v Skinner 36 Ch D 145, p 185.

    The presumption of undue influence

47. A presumption of undue influence arises where there is proof of both a relationship of influence and a transaction calling for explanation.

    
    

48. In order for that presumption to be rebutted, the court must be satisfied “that the donor was acting independently of any influence from the donee and with full appreciation of what he was doing”.66 This question is different from the question of whether the transaction calls for explanation. It requires proof that the transaction was a result of “full, free and informed thought”.67 The conclusion that the transaction was entered into as a result of undue influence is avoided by showing that while the donor effected a questionable transaction, he or she did so knowingly and freely.

    
    

49. The most usual way of rebutting the presumption of undue influence is to prove that the donor was independently advised. However, there are no limits to the appropriate evidence and the provision of independent advice is not always sufficient to rebut the presumption. Ultimately, “[the] question of whether the presumption of undue influence has been rebutted is a question of fact to be determined on all the evidence”.68

    
    

    TESTAMENTARY UNDUE INFLUENCE

    
    

50. The law of undue influence that is applied when a will is challenged (which we refer to as testamentary undue influence) operates differently to the general equitable doctrine.

    
    

51. Where a will is challenged on the basis that it has been executed through undue influence, no presumption of undue influence is available. Instead, the burden falls on the person challenging the will to prove the undue influence. In this respect, in testamentary cases claims to undue influence are confined to actual undue influence.

    
    

52. Further, the burden imposed on the person claiming undue influence appears high. Under the general doctrine, undue influence has been found in a wide range of behaviour from threats, coercion and blackmail to honest advice given where the relationship was one of influence.69 In contrast, testamentary undue influence has been held to be confined to coercion. As was explained in the seminal mid-nineteenth century case of Boyse v Rossborough:

    
    

    I am prepared to say that influence, in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence exercised either by coercion or by fraud. In the interpretation, indeed, of these words some latitude must be allowed. In order to come to the conclusion that a will has been obtained by coercion, it is not necessary to establish that actual violence has been used or even threatened. The conduct of a person in vigorous health towards one feeble in body, even though not unsound in mind, may be such as to excite terror and

    
    

    
    

    66 Inche Noriah v Sheik Allie Bin Omar [1929] AC 127, 135.

    67 J McGhee QC (ed), Snell’s Equity (33rd ed 2016) para 8-033, citing Zamet v Hyman [1961] 1 WLR 1442.

    68 Royal Bank of Scotland Plc v Etridge (No.2) [2001] UKHL 44; [2002] 2 AC 773 at [20].

    69 J McGhee QC (ed), Snell’s Equity (33rd ed 2016) para 8-018.

    make him execute as his will an instrument which, if he had been free from such influence, he would not have executed.70

    
    

    The approach to testamentary undue influence

53. The approach to testamentary undue influence was summarised by Mr Justice Lewison (as he was then) in Re Edwards (deceased) in the following terms.

    
    

    1. In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

       
       

    2. Whether undue influence has procured the execution of a will is therefore a question of fact;

       
       

    3. The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;

       
       

    4. In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud.

       
       

    5. Coercion is pressure that overpowers the volition without convincing the testator's judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator's free judgment discretion or wishes, is enough to amount to coercion in this sense;

       
       

    6. The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness' sake to do anything. A “drip drip” approach may be highly effective in sapping the will;

    
    

    (…)

    
    

    ix) The question is not whether the court considers that the testator's testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes. The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.71

    
    

54. In Re Edwards the testator had previously made a will in which her estate was shared equally between her two sons, Terry and John. She then made a new will in which Terry inherited the estate to the exclusion of John. At the time the new will was made, the

    
    

    
    

    
    

    70 Boyse v Rossborough (1857) 6 HLC 2 at 48 to 49 by Lord Cranworth.

    71 [2007] EWHC 1119 (Ch), [2007] WTLR 1387, at [47].

    testator was frail and elderly and after a stay in hospital she had been taken back, against medical advice, to the home she shared with Terry. Mr Justice Lewison explained that at the time she made the new will, the testator was “… frail and vulnerable, and frightened of Terry” who kept her way from John, with whom she had an excellent relationship. The judge held that Terry had used the time to poison the testator’s mind against John and his wife by making deliberately untruthful accusations. Mr Justice Lewison concluded that in changing her will, the testator “was simply doing as she was told. In my judgment that amounts to undue influence”.72

    
    

55. This summary has been cited with approval in several cases.73 Doubt has, however, been cast on the suggestion that for a claim of undue influence to succeed the circumstances must be “inconsistent with a contrary hypothesis”. This requirement, which has its origins in Boyse v Rossborough, does not reflect the current approach to the civil standard of proof.74 In Cowderoy v Cranfield, Mr Justice Morgan said:

    
    

    where I have considerable evidence as to the circumstances in which the disputed will was prepared and executed, I think it is more appropriate for me simply to ask whether the party asserting undue influence has satisfied me to the requisite standard.75

    
    

56. The undue influence may be applied by a third party, in order to benefit someone else, as in the case of Schomberg v Taylor,76 discussed below.

    
    

    Recent case law

57. A claim to undue influence succeeded in Schrader v Schrader, a case which has some similarly to Re Edwards. There, the elderly testator made a new will leaving her home (her main asset) to one of her sons, Nick. The will replaced a previous one in which her estate was divided equally between her two sons. In finding undue influence, Mr Justice Mann took into account a number of factors. He considered the testator’s vulnerability; her dependence on Nick; his “powerful personality” and “forceful physical presence” (although there was no abuse); the fact that her reasons for excluding her other son were inaccurate; and that Nick had taken more of a role in procuring the will than he had initially admitted. It was also relevant that the will had not been written by the testator’s usual solicitors.

    
    

58. The frail health of the elderly testator in Schomberg v Taylor was also relevant to the finding of undue influence. The testator, who is described as being “in a very fragile physical and mental state” following the loss of her husband changed her will to benefit her brother-in-law’s children, to the exclusion of her step-sons, who were beneficiaries under a previous will and with whom the testator had a good relationship. The judge

    
    

    
    

    
    

    72 Above, at para [55].

    73 Cowderoy v Cranfield [2011] EWHC 1616 (Ch), [2011] WTLR 1699; Wharton v Bancroft [2011] EWHC 3250 (Ch), [2012] WTLR 693; Schrader v Schrader [2013] EWHC 466 (Ch), [2013] WTLR 701; Schomberg v Taylor [2013] EWHC 2269 (Ch), [2013] WTLR 1413

    74 M Allardice, “The vulnerable testator and undue influence” [2017] Elder Law Journal , 10, pp 13-14

    75 Above, at [141]. This view was endorsed in Wharton v Bancroft above, at [30] and Schomberg v Taylor

    above, at [30].

    76 [2013] EWHC 2269 (Ch).

    explained that there was “no obvious reason” for this fundamental change unless the testator had been pressurised. There was “cogent evidence” of pressure being applied by her brother-in-law, which satisfied the judge that the testator was

    
    

    so worn down … that she was prepared to do what [her brother-in law] was suggesting in order to have a quiet life, rather than because that reflected what, in reality, she wanted to do.77

    
    

59. These recent decisions are not, however, considered to be typical of testamentary undue influence claims. They have been described as “rare” examples of the courts’ willingness to find undue influence on the basis of circumstantial evidence.78 The absence of the presumptions applied under the general doctrine, combined with the high bar of establishing coercion, means that claims for testamentary undue influence commonly fail for a lack of sufficient evidence.

    
    

60. For example, in Re Devillebichot (deceased) it was held that the testator had been persuaded, but not influenced;79 in Wharton v Bancroft, in the case of a deathbed will, there was insufficient evidence that the testator had been coerced;80 in Cowderoy v Cranfield, no undue influence was found on the part of a friend of the testator’s alcoholic son, as there was no evidence that the friend “ever tried to persuade … [the testator] to make a will in his favour” and no such inference could be drawn.81 In other cases, the suggestion that the testator was subject to undue influence has appeared misconceived. In Parker v Litchfield it was held that the testator had in fact been “an independent-minded woman who was keen to do things her way”.82 In Jeffery v Jeffery it was found that it had in fact been the testator who was “undoubtedly dominant” in her relationship with the person alleged to have applied undue influence.83

    
    

    Undue influence and fraudulent calumny

61. A specific type of fraud, known as fraudulent calumny, is sometimes pleaded alongside a claim to undue influence. Fraudulent calumny, like undue influence, provides a basis on which a will may be set aside. It was described in Re Edwards by Mr Justice Lewison (as he then was) in the following terms:

    
    

    The basic idea is that if A poisons the testator's mind against B, who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside.84

    
    

    
    

    77 [2013] EWHC 2269 (Ch) at [107], [110], [108] and [109] respectively.

    78 M Allardice, “The vulnerable testator and undue influence” [2017] Elder Law Journal 10, at p 14.

    79 [2013] EWHC 2867 (Ch), [2013] WTLR 1701.

    80 [2011] EWHC 3250 (Ch), [2012] WTLR 693.

    81 [2011] EWHC 1616 (Ch), [2011] WTLR 1699, at [147].

    82 [2014] EWHC 1799 (Ch), at [31].

    83 [2013] EWHC 1942 (Ch), [2013] WTLR 1509, at [173].

    84 Above, at [47].

62. Mr Justice Lewison went on to explain that “[the] essence of fraudulent calumny is that the person alleged to have been poisoning the testator's mind must either know that the aspersions are false or not care whether they are true or false”.

    
    

63. While the will in Re Edwards was set aside on the basis of undue influence, it seems that the facts of the case also fit the description of a claim to fraudulent calumny.

    
    

    THE RELATIONSHIP BETWEEN KNOWLEDGE AND APPROVAL, UNDUE INFLUENCE AND CAPACITY

    
    

64. Where a will has been executed and the testator has died, there are three key ways in which the law ensures that the will represents the testator’s true wishes:

    
    

    1. the testator must have had capacity to execute the will;

       
       

    2. the will must reflect the testator’s actual intentions; and

       
       

    3. those intentions must have been freely formed by the testator.

       
       

65. At face value, each of these questions is distinct. The first is ensured by the rules on capacity, which focuses on the mental capacity of the testator. The second is ensured by knowledge and approval, which is concerned with the relationship between the testator’s wishes and the content of the will, as well as by rules relating to the rectification and interpretation of wills that we consider in Chapter 9. The third is ensured by undue influence, which focuses on the process by which the will was written.

    
    

66. In practice, the relationship between these three issues is closely intertwined. Each has a role to play in protecting vulnerable testators by ensuring that a will is given effect only where it represents a genuine expression of testamentary freedom, and the precise relationship between them is not clear.

    
    

67. The relationship between undue influence and capacity is perhaps the most straightforward. Whilst capacity ensures that a will is not given effect where the testator lacked mental capacity to execute the will, undue influence protects testators who retain capacity, but have acted under coercion. The relationship between these principles is not further discussed.

    
    

68. In the remainder of this chapter, we consider the relationship between knowledge and approval and capacity, and knowledge and approval and undue influence, and make recommendations for reform.

    
    

    Knowledge and approval and capacity

69. We have noted above that knowledge and approval has been interpreted in different ways.85 On one interpretation, it requires knowledge and approval of the same issues as are given in Banks v Goodfellow in respect of capacity. On this view, it would be difficult for a court to find that a testator had knowledge and approval of a will if the

    
    

    
    

    85 See para 7.7 above.

    testator lacked capacity.86 The more recent view, however, is that all that is required is knowledge and approval of choices that the testator has already made.87

    
    

70. On either interpretation of knowledge and approval, a testator may have capacity but not have knowledge and approval of his or her will. In Gill v Woodall, counsel for the appellant (the charity beneficiary) argued that, if the testator were incapable of taking in what she was being told about the contents of a document this necessarily raised an issue of capacity (which had not been pleaded) rather than knowledge and approval. Lord Justice Lloyd rejected that suggestion.88 In holding that the testator did not know and approve of the contents of a will, which had been executed in a solicitor’s office, Lord Justice Lloyd explained:

    
    

    It is one thing to say that on a relevant date Mrs Gill had the necessary understanding of the nature and extent of the property of which she could dispose by her will, and of the claims of relevant persons on her benevolence. It is quite another to examine whether, in particular circumstances, she did in fact understand what was said to her at a given meeting and what was in the document which she signed.89

    
    

71. There, the testator may have been able to have knowledge and approval of her will if had been executed in circumstances that mitigated the effects of her severe agoraphobia; for example, if had been executed at home with the contents explained to her by people that she knew.90

    
    

72. Both capacity and knowledge and approval are required at the same time; the date on which the will is executed. In this respect, the question of whether a testator who lacks capacity can have knowledge and approval of a will appears irrelevant – the will would fail for lack of capacity.

    
    

73. Practical questions arise, however, where there is a gap between the giving of instructions for a will and its execution. As we have seen above, knowledge and approval benefits from a rule akin to the rule in Parker v Felgate that is applied in relation to capacity.91 The combined effect of the rules is that where a testator loses capacity between giving instructions for a will and the execution of the will, the will is not made invalid because of the testator’s lack of capacity or want of knowledge and approval at the time the will was executed.

    
    

74. If knowledge and approval requires awareness of the same issues that are set out in Banks v Goodfellow in respect of capacity, then the need to mirror the rule in Parker v Felgate is apparent. But even if knowledge and approval is confined to an awareness of choices already made, the same policy that underpins the rule in Parker v Felgate

    
    

    
    

    86 P Reed, “Capacity and want of knowledge and approval” in B Häcker and C Mitchell (eds) Current Issues in Succession Law (2016) para 3.17.

    87 Perrins v Holland [2010] EWCA Civ 840, [2011] Ch 270.

    88 [2010] EWCA Civ 1430, [2011] Ch 380.

    89 Above, at [70].

    90 Lord Justice Lloyd acknowledged, however, that there might still have been difficulties in the will being executed in such circumstance: above, at [70].

    91 See para 2.89 above.

    supports a mirror rule operating in relation to knowledge and approval; that is, the desire to give effect to the testamentary wishes of a testator where his or her capacity declines after giving instructions. It would appear inconsistent to hold that, where the testator loses capacity between giving instructions and the execution of the will, the will is saved from invalidity for lack of capacity, but may fail for want of knowledge and approval.

    
    

75. Even if, as appears to be the case, knowledge and approval is confined to an awareness of previous choices, then it is possible that a testator who has lost capacity at the time that his or her will is executed is, notwithstanding, able to display knowledge and approval of the contents of the will. It will be necessary to invoke the rule mirroring Parker v Felgate only where the decline in capacity is such that the testator is unable even to demonstrate knowledge and approval of previous choices.

    
    

76. In Chapter 2 we have provisionally proposed that the rule in Parker v Felgate should be retained for the purposes of capacity. Similarly, we consider that the mirror rule that applies in respect of knowledge and approval should be retained.

    
    

    
    

    Knowledge and approval and undue influence

77. The most complex relationship is that between knowledge and approval and undue influence.

    
    

78. In particular, there is a concern that the law has developed in such a way that in a number of instances wills are being challenged on the basis of want of knowledge and approval, when in fact the circumstances would more appropriately give rise to a claim to undue influence.

    
    

79. The foremost critic of the law concerning knowledge and approval is Professor Roger Kerridge.92 He has identified a number of reasons for claimants inappropriately invoking knowledge and approval instead of undue influence (or fraud), which he considers to be a cause for concern. Professor Kerridge traces this approach to the decision of the Court of Appeal in Wintle v Nye.93 There, want of knowledge and approval was pleaded where a solicitor helped to prepare a will under which he benefitted. We have explained

    
    

    
    

    92 R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) p 85. See also E Myers, “The friendly approach” (2015) 165 New Law Journal.

    93 [1959] 1 WLR 284.

    above that a beneficiary’s participation in making a will is a matter that would raise the court’s suspicions in the context of knowledge and approval.94 Professor Kerridge, however, suggests that the plea was a cover for the solicitor’s fraud.95 Subsequently, in the Estate of Fuld,96 Mr Justice Scarman (as he then was) welcomed the decision in Wintle v Nye. He said:

    
    

    It may well be that positive charges of fraud and undue influence will not feature as largely in the pleadings of probate cases, now that Wintle v Nye has been decided, as they have done in the past; clearly it would be preferable if they did not, and I am bound to say that it was unnecessary in the present case for such charges to have been raised.97

    
    

80. It has been suggested, for example, that the claim for want of knowledge and approval in Fuller v Strum,98 Sherrington v Sherrington99 and Hawes v Burgess100 cloaked allegations of undue influence.

    
    

    Why is a plea of knowledge and approval preferred?

81. There are at least three reasons why want of knowledge and approval is pleaded in place of undue influence.

    
    

82. First, it has been suggested that a challenge based on the testator’s want of knowledge and approval may be preferred by litigants in cases involving close family members. Litigants may be reluctant to allege fraud or undue influence on the part of family members.101

    
    

83. Secondly, and most significantly, Professor Kerridge notes that there is a positive incentive for those who wish to challenge a will to plead knowledge and approval rather than undue influence and fraud, given that the burden of proving knowledge and

    
    

    
    

    
    

    94 See para 7.17 above.

    95 R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) p 95. In Wintle v Nye the House of Lords ordered a retrial because they found that the jury has been misdirected, but the solicitor, Nye, then conceded the case.

    96 [1966] 2 WLR 717.

    97 Above, at 722.

    98 [2001] EWCA Civ 1879. [2002] 1 WLR 1097, R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) p 86. In this case one of the principal beneficiaries drew up the will (using a will form) for the testator in a bedroom in the testator’s house, with only the testator and the beneficiary present.

    99 [2006] EWCA Civ 1784 R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) p 96. In this case the testator’s will, which left everything to his second wife, had been prepared by her daughter (his step-daughter). The court at first instance found that the testator’s relationship with his second wife was so bad that it caused him great unhappiness and deep depression and that the deceased would “…do anything for a peaceful life.”

    100 [2013] EWCA Civ 94, [2013] WTLR 453, see M Evans, “Knowledge is power”, available at http://www.privateclientadviser.co.uk/blog/knowledge-power (last accessed 14 June 2017). In this case the judge at first instance had found that the daughter who benefited from the new will which disinherited her brother had been the “controlling force” in the instructions given for the drafting of the will.

    101 J Brook, “The Neighbour, The Carer and The Old Friend – the Complex World of Testamentary Capacity”, in H Conway and R Hickey (eds) Modern Studies in Property Law (9th ed 2017) p 119.

    approval is on the propounder of the will. By contrast, those challenging the will on the grounds of undue influence or fraud will have to positively prove their case and a failed challenge on these grounds will usually result in the challenger having to pay the costs of those propounding the will.102 In contrast, those “…who unsuccessfully plead lack of knowledge and approval hope to be awarded costs from the estate, or at least not to have a costs order made against them.”103

    
    

84. Thirdly, Professor Kerridge argues that changes to the procedural rules that govern claims have made it easier for knowledge and approval to be used in contentious probate cases to “cloak” an argument that is, in fact, one of undue influence and fraud.104 On the other hand, however, in Ark v Kaur it was emphasised that “the court will not allow the rule [as to excitement of suspicion] to be used to screen for allegations of fraud and dishonesty, which must be pleaded and proved”.105

    
    

    Does reliance on knowledge and approval matter?

85. The question must be asked whether it matters that claimants are relying on knowledge and approval even if the substance of their allegation would more appropriately be considered to reveal undue influence.

    
    

86. The primary purpose of the law in this context is to protect vulnerable testators. That purpose is achieved where a will is set aside for want of knowledge and approval, even if undue influence would have been a more appropriate claim. Indeed, it may be suggested that reform that seeks to deny the claim risks leaving vulnerable testators without sufficient protection. A desire for claims to be honest is important, but if the facts support two possible avenues to challenges, then the claimant is entitled to choose whichever plea (of undue influence, or want of knowledge and approval) he or she wishes.

    
    

87. There are, however, two reasons why reliance on knowledge and approval gives rise to concern. First, it means that the requirement of knowledge and approval is being asked to perform a task that it is neither designed nor best placed to achieve. As has been noted above, undue influence is concerned with the process by which a will has been made. In other words, it ensures that the testator’s knowledge and approval of his or her will has been given freely. Knowledge and approval is directed at the substance of the document that has been signed as a will, and the testator’s awareness of the contents. To invoke knowledge and approval where the substantive claim that is being made is that the testator did not freely execute the will conflates procedure and substance.

    
    

88. The requirement of approval in knowledge and approval can be understood widely or narrowly. Understood narrowly, it requires only that the testator approves the content of

    
    

    
    

    102 See R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) pp 89 to 90.

    103 See R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) p

    97. On costs see J R Martyn, A Learmonth, J E Gordon, C Ford and T Fletcher, Theobald on Wills (18th ed 2016) para 11-104.

    104 See R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) pp 85 and 90.

    105 [2010] EWHC 2314 (Ch), (2010) 154(36) SJLB 34, at [43].

    the document and intends that document to be his or her will. Understood widely, approval also requires the testator to be acting on the basis of his or her own free will. This wider interpretation conflates knowledge and approval with undue influence. It is possible (on the narrow interpretation) for a testator to intend a document to be his or her will, despite (indeed, because) the testator has been placed under undue pressure. Restricting “approval” to this narrow interpretation does not, however, mean that the will is valid. It means only that the role of determining whether the testator’s approval of the will was freely reached is determined through undue influence.

    
    

89. It is important that determining whether the testator acted freely in approving his or her will is left to undue influence because the question of process raises distinct issues to that of substance. The law of undue influence is equipped to direct the court as to how to answer those questions (such as whether the testator was coerced) in a way that knowledge and approval is not. There is a danger therefore that relying on knowledge and approval to answer questions of process will not provide adequate protection.

    
    

90. Secondly, the fact that claimants rely on knowledge and approval suggests that undue influence is not able adequately to perform the role it is intended to achieve in the context of wills. In other words, reliance on knowledge and approval suggests dissatisfaction with the operation of testamentary undue influence and therefore a need for reform.

    
    

    REFORM

    
    

91. We consider that recommendations for reform must take into account collectively the role of undue influence and knowledge and approval. Reform must have at its centre the need to protect testamentary freedom. To do so, however, it is necessary to balance two objectives.

    
    

    1. The law must provide adequate protection to vulnerable testators by ensuring that wills that do not reflect the freely made wishes of the testator are able to be challenged.

       
       

    2. The law must not encourage speculative or spurious claims by disappointed beneficiaries.

       
       

92. In particular, in relation to the second of these objectives, it is important to make clear that a will should not be left subject to challenge simply because it does not accord with social norms or expectations. The mere fact, for example, that the testator favours one child over another, a second family over a first, friends over family, or charity over family and friends, is not a ground to cast suspicion over a will. Such decisions are the expression of testamentary freedom, not an indication that a vulnerable testator has been abused.

    
    

93. We first consider reform to undue influence and then consider knowledge and approval in light of our recommendations for reform of undue influence.

    
    

    Undue influence

94. Stakeholders we have spoken to have expressed concern that it is currently too difficult to challenge a will on the basis of testamentary undue influence. In particular, stakeholders are concerned that vulnerable testators are not adequately protected from

    financial abuse in older age.106 We have been told that where financial abuse arises it may often occur within a family, and may be conducted without an awareness that any wrongdoing is being committed.

    
    

95. Outside of family relations, there is an awareness of the potential for financial abuse to be conducted by professional carers. Again, the abuse may arise without an awareness of wrongdoing; for example, where a carer accepts a gift of money from a vulnerable person. We emphasise that we have not been told that undue influence by professional carers is a significant problem; indeed the majority of carers carry out a very difficult job with honesty and dedication. Stakeholders who provide care for particularly vulnerable people have explained to us policies that they have in place to minimise risks, such as not permitting staff to accept testamentary (or lifetime) gifts. We have, however, been told of particular concerns that arise in respect of undue influence where testators are socially isolated, for example as a result of age, illness or disability. We have also heard anecdotally of particular instances where a carer has formed an intimate relationship with an older testator, sometimes involving marriage, where there is a suspicion that the carer may have been motivated by a desire to obtain that person’s assets. It has not, however, been suggested to us that such occurrences are common.

    
    

96. Reform could take one of two approaches:

    
    

    1. the general doctrine of undue influence could be applied in the testamentary context, so that the presumptions that operate under the general doctrine can be invoked; or

       
       

    2. a specific statutory form of testamentary undue influence could be created.

       
       

97. We consider that adopting the general doctrine of undue influence is neither appropriate nor workable and we explain our reasons below. We then put forward two forms that the specific law of testamentary undue influence could take.

    
    

    Applying the general doctrine of undue influence in the testamentary context

98. The development of a separate law of testamentary undue influence appears to be based on the idea that a will does not strip a person of property during his or her lifetime. In other words, the harm to the individual is different in the lifetime and testamentary contexts. This distinction was drawn by Viscount Haldane in Craig v Lamoureux.107 He explained:

    
    

    A will, which merely regulates succession after death, is very different from a gift inter vivos, which strips the donor of his property during his lifetime … . There is no reason why a husband or a parent, on whose part it is natural that he should do so, may not put his claims before a wife or a child and ask for their recognition, provided the person making the will knows what is being done.108

    
    

    
    

    106 See further, in a different context (financial abuse by an attorney under a lasting power of attorney), Dalley et al, “Exploring financial abuse as a feature of family life: an analysis of Court of Protection cases” [2017] Elder Law Journal 28.

    107 [1920] AC 349.

    108 [1920] AC 349, 356 to 357.

99. We question whether, as a matter of policy, this distinction is convincing. While the testator is not deprived of his or her property, in the testamentary context undue influence operates to deprive of property those who would have inherited but for the undue influence. Further, harm is caused to the testator who is deprived of the exercise of his or her testamentary freedom. Indeed, it has been suggested that being able to raise a presumption of undue influence:

    
    

    … is more necessary in the case of wills, because exploiters might be more inclined to refrain from depredations in the inter vivos context by the very fact that their victims might still be alive and able to expose them.109

    
    

100. Nevertheless, we consider that there is good reason to treat the testamentary context differently. First, the relationships in which a presumption of undue influence is raised in the general doctrine do not necessarily capture those in which there may be a suspicion of undue influence in the testamentary context. For example, a large gift from an adult child to a parent in a will may not be considered at all unusual because, where a child dies before his or her parent(s) the parent may be the natural beneficiary of the child’s property.110 Conversely, the relationship between a professional carer and the recipient of care in which, as explained above, there may be particular concerns in the testamentary context, is not presumed to be one of influence under the general doctrine.

     
     

101. Secondly, we are concerned that the general requirement that a transaction calls for explanation may operate too broadly in respect of a will. This would particularly be the case were the requirement to be used to challenge a will which did not correspond to social norms or expectations; for example, by favouring one child over the other. The concern that the general doctrine of undue influence may threaten testamentary freedom in this way has been voiced by Professor Pauline Ridge. As she explains:

     
     

     There is … a danger that the judicial discretion involved in deciding whether requirements (i) and (ii) [relationship of trust and confidence and whether a transaction can be explained on the facts] of an equitable undue influence claim are satisfied on the facts of a particular case could lead courts to decide claims according to cultural norms regarding the testamentary disposition of property, rather than upholding freedom of testation, however socially unacceptable.111

     
     

102. Thirdly, where a presumption of undue influence is raised in the lifetime context, a common way of rebutting the presumption is to show that the person claiming to have

     
     

     
     

     109 DR Klinck, “Does the presumption of undue influence arise in the testamentary context?” (2005) 24 Estates, Trusts and Pensions Journal 125, at 136 to 137.

     110 As is reflected in the intestacy rules where, in the absence of a spouse or children (or other descendants), the property of an intestate person will pass to his or her parents (see Administration of Estates Act 1925, s 46). In addition, as we have discussed at paragraph 7.40 above the presumption may last only a short time after the child reaches 18 and minor children cannot currently make a will (see Chapter 8 for a discussion of possible reform in this area), making the presumption less applicable in the testamentary context.

     111 P Ridge, “Equitable undue influence and wills” (2004) 120 Law Quarterly Review 617, at 633. Fiona Burns agrees: see F Burns, “Reforming testamentary undue influence in Canadian and English law” 29 Dalhousie Law Journal (2006), 455 at 474. See also F Burns, “, “Reforming testamentary undue influence in Canadian and English law” 29 Dalhousie Law Journal (2006) 455. Burns also cautions against adopting the general doctrine of undue influence in the testamentary context.

     been unduly influenced received legal or other independent advice.112 In the testamentary context, reliance on advice may place the beneficiary under a particular disadvantage. The beneficiary may have been unaware that the will has been executed, or as to its terms, and so unable to encourage the testator to seek advice. Further, in the wider context of encouraging people to make wills, a rule that operated to favour the validity of professionally drawn wills may be seen as placing a barrier in the way of home-made wills to the extent that it was seen as suggesting that a person considering making a will should necessarily seek professional advice.

     
     

103. Fourthly, and following on from the third point, it may generally be considered more difficult for a beneficiary to rebut a presumption where the person he or she is alleged to have unduly influenced is dead and so their own evidence is not available to the court. In the nineteenth century case of Parfitt v Lawless Lord Penzance explained:

     
     

     In those cases of gifts or contracts inter vivos there is a transaction in which the person benefited at least takes part, whether he unduly urges his influence or not; and in calling upon him to explain the part he took, and the circumstances that brought about the gift or obligation, the Court is plainly requiring of him an explanation within his knowledge. But in the case of a legacy under a will, the legatee may have, and in point of fact generally has, no part in or even knowledge of the act; and to cast upon him, on the bare proof of the legacy and his relation to the testator, the burthen of shewing how the thing came about, and under what influence or with what motives the legacy was made, or what advice the testator had, professional or otherwise, would be to cast a duty on him which in many, if not most cases, he could not possibly discharge.113

     
     

104. We note, however, that this concern does not prevent the operation of the presumption where the donor of a lifetime gift has died before a claim to undue influence is made.114

     
     

105. We consider the collective force of these arguments persuasive. We are concerned that the adoption of the general doctrine of undue influence in the testamentary context risks leaving wills too ready to challenge by disappointed beneficiaries. The operation of the presumptions would cast the web of suspicion too widely in circumstances in which it may be difficult for the beneficiary to rebut a presumption once raised.

     
     

     
     

     112 M Allardice, “The vulnerable testator and undue influence” [2017] Elder Law Journal 10 at p 18.

     113 (1869-72) LR 2 P&D 462, at 469.

     114 See, for example, Re Estate of Brocklehurst (deceased) [1978] Ch 14, [1977] 3 WLR 696, and P Ridge, “Equitable undue influence and wills” (2004) 120 Law Quarterly Review 617, at 630; L Mason “Undue influence and testamentary dispositions: an equitable jurisdiction in probate law?” [2011] 2 Conveyancer and Property Lawyer 115, at 119; and DR Klinck, “Does the presumption of undue influence arise in the testamentary context?” (2005) 24 Estates, Trusts and Pensions Journal 125, at 136.

     
     

     
     

     A statutory doctrine of testamentary undue influence

106. We consider that while the current law of testamentary undue influence is too narrowly drawn, causing claims to be made on the basis of want and approval, the general doctrine is too broad to apply to testamentary gifts. We have provisionally concluded, therefore, that there is a need for a specific, statutory form of testamentary undue influence that can focus on the particular harm that undue influence seeks to prevent in the testamentary context.

     
     

107. The idea of providing a specific form of undue influence for the testamentary context is not a novel one. Fiona Burns has argued that a modified doctrine of undue influence should be applied in the testamentary context as a means of imposing “practical and achievable thresholds”.115 While Burns expresses concern at the operation of presumptions in the testamentary context, we think that there is a role for them. We consider, however, that their scope needs to be more closely confined than under the general doctrine.

     
     

108. A statutory presumption of undue influence in the testamentary context has been introduced in British Columbia. There, statute provides as follows:

     
     

     In a proceeding, if a person claims that a will or any provision of it resulted from another person

     
     

     1. being in a position where the potential for dependence or domination of the will-maker was present, and

        
        

     2. using that position to unduly influence the will-maker to make the will or the provision of it that is challenged,

     
     

     and establishes that the other person was in a position where the potential for dependence or domination of the will-maker was present, the party seeking to defend the will or the provision of it that is challenged or to uphold the gift has the onus of establishing that the person in the position where the potential for dependence or domination of the will-maker was present did not exercise undue influence over the will-maker with respect to the will or the provision of it that is challenged.116

     
     

     
     

     115 F Burns, “Reforming testamentary undue influence in Canadian and English law” 29 Dalhousie Law Journal

     (2006) 455, at 486.

     116 Wills, Estates and Succession Act, S.B.C. 2009, s 52.

109. In our view, the British Columbian provision appears to cast the scope of undue influence too widely. It focuses on the finding of a relationship of influence, to the exclusion of any requirement that the disposition calls for explanation.

     
     

110. We suggest that a statutory doctrine of testamentary undue influence could take one of two forms, either a structured approach or a discretionary approach. Those approaches would not affect cases in which undue influence can be proved directly. The approaches we consider would supplement rather than replace the law of undue influence as set out in Re Edwards117 which concerns a finding of actual undue influence. The structured and discretionary approaches are mechanisms for applying a presumption of undue influence. Where undue influence is proved by a presumption it is presumed that the behaviour in question (the alleged undue influence) caused the testator to execute the will. Evidence in the case will focus on whether a presumption arises or whether it is rebutted.

     
     

     A structured approach

111. A structured approach would follow the same pattern as the general doctrine, but modify the application of the doctrine more appropriately to suit the testamentary context. Under this approach, a presumption of undue influence would be raised (as it is under the general doctrine) where two pre-requisites are shown:

     
     

     1. the existence of a relationship of influence, which would be presumed in respect of some relationships; and

        
        

     2. the disposition calls for explanation.

        
        

112. An irrebutable presumption that there is a relationship of influence would be raised in respect of testamentary gifts made by the testator to:

     
     

     1. a trustee;

        
        

     2. a medical adviser;

        
        

     3. a person who prepares their will for remuneration; and

        
        

     4. a professional carer.

     
     

113. The first two relationships mirror those considered to be relationships of influence under the general doctrine. The third extends the relationship of solicitor and client under the general law to any person who prepares a will for remuneration. The fourth is designed to respond to the risk of abuse of vulnerable testators by paid carers, which is a particular concern in the testamentary context. Importantly, the category does not extend to family members and others who provide informal care.

     
     

114. The list excludes from the list applied under the general law gifts from a child to a parent or guardian. This category is excluded to ensure that testamentary dispositions that may be considered common are not too easily brought under suspicion. It would remain

     
     

     
     

     117 [2007] EWHC 1119 (Ch), [2007] WTLR 1387, at [47].

     open for the person alleging undue influence to prove that a relationship of influence in fact existed in any particular case.

     
     

115. With regard to gifts made by a follower to a spiritual advisor, which are included in the list applied under the general law, we think that the question of whether a relationship of influence should be presumed in the testamentary context is a more finely balanced one. Such dispositions, like those from a child to a parent, may not be thought unusual in the testamentary context because of the link between spiritual beliefs and mortality. On the other hand, the relationship between a follower and his or her spiritual adviser may offer potential for undue influence.118 Consequently, we ask consultees for their views on this point.

     
     

116. In all other cases, the existence of a relationship of influence would need to be proven.

     
     

117. Where a relationship of influence is presumed, or shown to exist, then a presumption of undue influence would be raised, as under the general doctrine, only where it is also established that the disposition made in a will calls for explanation.

     
     

118. The circumstances in which a testamentary gift calls for explanation would need to be carefully circumscribed, although there would necessarily be a need for the courts to consider the facts of individual cases.

     
     

119. We have explained above that under the general doctrine of undue influence a gift or transaction calls for explanation when it cannot readily be accounted for by the ordinary motives of persons in that relationship.119 We consider that this criterion is inappropriate in the testamentary context. It gives rise to the risk, outlined above, of a presumption of undue influence being raised because a testamentary disposition departs from accepted norms or expectations. Instead, we consider that in the testamentary context, in determining whether a disposition calls for explanation, the court should be directed to consider two factors:

     
     

     1. the conduct of the beneficiary in relation to the making of the will; and

        
        

     2. the circumstances in which the will was made.

        
        

120. The first factor reflects a common feature in a number of cases in which testamentary undue influence has been found.120

     
     

121. Professor Kerridge has argued that there should be a presumption of undue influence where a beneficiary has been instrumental in the preparation of a will.121 He considers that this approach would be preferable to the adoption of the general doctrine of undue influence as the general doctrine would not, in his view, have operated to raise a presumption in some cases where there is a suspicion of undue influence or fraud. For

     
     

     
     

     118 See Lindley J’s comments in Allcard v Skinner (1887) 36 Ch 145 at 183.

     119 See para 7.36 above.

     120 For example, Schrader v Schrader [2013] EWHC 466 (Ch).

     121 R Kerridge, “Wills made in suspicious circumstances: the problem of the vulnerable testator” (2000) 59 Cambridge Law Journal 310, at 322., and R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) p 107.

     example, in Re Rowinska (deceased) following the testator’s death the claimant produced a will in which he was named as the sole beneficiary.122 The will had been prepared by the claimant a few weeks before the testator’s death and revoked a previous professionally drawn will in which the testator had divided her estate amongst relatives in Poland, including the defendant, her niece, and various Catholic charities. The beneficiary’s involvement cast suspicion on the will, along with the fact that it was written in English, when the testator’s English was poor. The testator had remained in a close and strong relationship with her niece. The will was set aside for want of knowledge and approval.

     
     

122. We agree that the beneficiary’s role in the making of the will is relevant, but we consider that it should still be necessary to establish a relationship of influence before a presumption is raised. While the relationship between the testator and beneficiary in Re Rowinska was not one that would have given rise to a presumption of influence under our proposal, that would not prevent the existence of a relationship of influence being shown on the facts. But we do not consider that the beneficiary’s role need then meet the apparently high threshold of being “instrumental”. The court should consider the beneficiary’s role in light of the relationship of influence that has been found (or is presumed) to exist. There may also be situations of undue influence where the person influencing the testator is a third party rather than a beneficiary, and which would therefore not be caught by such a presumption. Furthermore, the threshold of “instrumental” could be difficult to apply in practice.

     
     

123. Great care must be taken to ensure that this provision regarding the conduct of the beneficiary is not interpreted too widely. There is nothing inherently suspicious, for example, in a son or daughter making arrangements for his or her elderly parent to see a solicitor and in accompanying the parent to the appointment. Equally, there is nothing suspicious in children enquiring whether their parents have written their wills and encouraging them to do so.

     
     

124. The second factor is designed to catch circumstances where the beneficiary has not been involved in making the will, or the beneficiary’s involvement is not such as to suggest that the will calls for explanation, but the circumstances in which the will is made are such as to cast a suspicion of undue influence.

     
     

125. Care is needed in defining its scope as many cases may be susceptible to an “innocent” or “suspicious” interpretation. For example, the fact that a will is made close to the end of life following a change in circumstances (such as a decline in physical or mental health, or the forming of a new relationship) may suggest that the disposition calls for explanation. Equally, however, making the will may indicate no more than that the testator was planning for the end of life by putting his or her affairs in order. It will be necessary for the courts carefully to consider whether the disposition calls for explanation. A will executed by a testator who has become increasingly isolated, except through contact with the new beneficiary, may call for explanation; as may a will which significantly excludes previous beneficiaries where there is no apparent reason for the change (other than the alleged undue influence). Conversely, a change made that reflects the realities of the testator’s life would not call for explanation even though it leaves disappointed beneficiaries. For example, a will that excludes a beneficiary from

     
     

     
     

     122 [2005] EWHC 2794 (Ch), [2006] WTLR 487.

     whom the testator has become estranged, or favours those who have played a more significant role in the testator’s final years.

     
     

126. Once the presumption of undue influence is raised, it would be necessary for the beneficiary to rebut the presumption. As we have seen above, in the general doctrine the presumption is commonly rebutted by showing that legal or other independent advice was obtained.123 We have noted, however, that reliance on obtaining advice does not necessarily work in the testamentary context. Where legal advice has in fact been obtained, then it will of course still be relevant for the court to take into account. But it will be necessary for the court to look at factors other than legal advice to consider whether the presumption has been rebutted. For example, the court may consider evidence of the testator’s motivations for making the will, and of the extent to which the testator generally remained in control of managing his or her affairs. Ultimately, the presumption having been raised on the basis that the disposition calls for explanation, the question for the court is whether, on the balance of probabilities, an explanation has been given so that the court is satisfied that the testator acted freely.

     
     

127. We acknowledge that determining whether the presumption of undue influence should be raised and, if it is, when it is rebutted, may require a difficult assessment of facts by the court where a challenge to a will is made. However, by ensuring that the circumstances in which a presumption of undue influence arises are carefully drawn, it is only in cases in which there is a real suspicion of abuse that the assessment will need to be made.

     
     

     A discretionary approach

128. The structured approach to testamentary undue influence suggested above retains the two pre-requisites to raising a presumption of undue influence that are contained in the general doctrine. It relies, therefore, on the court finding a relationship of influence and then finding that a gift that calls for explanation; each limb would have to be established in each case as a matter of law. While we have suggested that the two tests should remain relatively flexible, we cannot anticipate exactly how they would be applied by the courts. It is possible that judicial decisions about the scope of these tests could cause them to be crystallised in such a way as to prevent the court subsequently finding a presumption of undue influence in circumstances where such a presumption was desirable on the facts, or vice versa.

     
     

129. An alternative to the structured approach where undue influence is presumed if the court finds that there is a relationship of influence and a transaction calling for an explanation would be to give the court power to presume undue influence while only having to take into account these factors and the general circumstances of the case. In other words, to change the two criteria that have to be individually satisfied under the structural approach to considerations for the court in deciding whether there should be a presumption. Under this discretionary approach there would be no need to presume that certain relationships are relationships of influence. The precise framing of the court’s power would need to be considered, but it could enable the court to presume undue influence “where it is satisfied that it is just to do so in all the circumstances of the case, taking into account in particular the extent to which there was a relationship of influence between the deceased and another person and whether the nature of the

     
     

     
     

     123 See para 7.48 above.

     gift is such as to call for explanation”. While this approach would still bring in the concepts of “relationship of influence” and “a gift calling for explanation”, the more discretionary approach would put less focus on the precise scope of those concepts and ensure greater flexibility. If the court used its power to presume undue influence, it would then be for the proponent of the will to rebut that presumption.

     
     

     
     

     
     

     Costs

130. As we have seen above, one of the reasons claimants may prefer to challenge the validity of a will on the basis of knowledge and approval rather than undue influence is because of the more favourable costs regime that applies. Some commentators have argued that the costs rules that apply in cases where undue influence are argued should be reformed, that is, claimants basing their claims on undue influence should not be in a more precarious position than claimants basing their claims on knowledge and approval.124

     
     

131. The thrust of that argument is that changing the costs rules would result in undue influence being pleaded more often and the role of knowledge and approval being more tightly circumscribed. Our proposals would have the same effect. Consequently, it may be thought that no change to the costs rules is necessary. Nevertheless, we have considered whether the costs rules should be changed and hope that it is helpful to set out our reasoning.

     
     

     
     

     124 R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) p 107; L Mason “Undue influence and testamentary dispositions: an equitable jurisdiction in probate law?” [2011] 2 Conveyancer and Property Lawyer 115, at 122; F Burns, “Reforming testamentary undue influence in Canadian and English law” 29 Dalhousie Law Journal (2006) 455, at 488.

132. In relation to costs, the general rule in litigation is that costs follow the event. That is, the unsuccessful party pays both their own costs and the costs of the successful party.125 However, there are exceptions to the general rule which apply in contentious probate cases; costs will be paid out of the testator’s estate where litigation has been caused by the conduct of the testator or the principal beneficiaries, or where the circumstances lead reasonably to an investigation of the matter.126 Nevertheless, costs are always awarded at the discretion of the court127 and parties pleading undue influence are likely to have to pay their opponent’s costs if the claim fails. Lord Justice Hodson in Re Cutliffe said:

     
     

     it must surely be obvious to anyone who has studied the history of litigation in the Probate Division… that where pleas of undue influence and pleas of fraud are made, the probability, at any rate, if they are unsuccessfully made, is that people who make such charges and fail will be condemned in the costs not only of that charge but of the whole action.128

     
     

133. That statement might lead to concern about our proposal. It might be thought that our proposals could make claimants’ positions precarious. Having to plead undue influence rather than want of knowledge and approval would seem to increase claimants’ risk of being sanctioned in costs should their claims fail. Being in such a precarious position might act as a disincentive to litigation and, therefore, it might be thought that our proposal risks reducing the protection for vulnerable testators (by which we also mean protecting the testator’s testamentary freedom by seeking to ensure that his or her estate does not pass to those whom the testator did not intend should inherit). That concern arguably warrants a change in the costs rules. However, our view is that the concerns can be adequately met without changing those rules.

     
     

134. To assess the impact of our proposal, it is necessary to consider the reason claimants are currently in a particularly precarious position when pleading undue influence. In short, under the current law, the circumstances of a case can seldom be seen as leading reasonably to an investigation of undue influence. The reason is that most claims that would succeed on the grounds of undue influence would succeed on grounds of want of knowledge and approval. It follows that it is usually unnecessary to plead undue influence and those claimants who do so unsuccessfully will face adverse consequences in costs.

     
     

135. That position would be different were our proposals to be taken up. There would be a greater range of circumstances in which it would be reasonable to contest a case on the basis of undue influence. The expanded doctrine of undue influence would make it easier to raise such claims, and the narrow scope for claims based on want of knowledge and approval would restrict the circumstances in which it would be appropriate to raise that issue. Consequently, if our proposal for a statutory doctrine of testamentary undue influence were taken up, there would be more cases in which the costs of an action on the basis of undue influence would be paid from the estate

     
     

     
     

     
     

     125 CPR r 44.2(b).

     126 Spiers v English [1907] P 122 at 123. See also CPR r 57.7(5).

     127 Senior Courts Act 1981 s 51.

     128 Re Cutliffe [1959] P 6.

     (following the rule that this is the case where the circumstances lead reasonably to an investigation of the matter). The costs position of claimants pleading undue influence would no longer be so precarious. The claims made by Lord Justice Hodson in Re Cutliffe would no longer ring true.

     
     

136. For that reason our opinion is that the costs rules are adequate as they stand and do not require amending as a result of our proposed reforms to undue influence and knowledge and approval. However, we would like to ask for consultees’ views in this area.

     
     

     
     

     The effect of reform

137. We have given consideration to the practical effects, including the prospect of litigation, should our provisional proposal for reform to the law of undue influence be adopted.

     
     

138. First, we think that undue influence will be pleaded in more cases and want of knowledge of approval pleaded less often. While the result will not be affected in most cases, the focus of the court’s inquiry will be more appropriately directed – to whether the will was freely executed.

     
     

139. One example of a case in which our proposal may have had an effect is Hubbard v Scott.129 In this case an elderly man, aged 87, executed a will just over ten days before his death, leaving his estate to a woman who had at one time been his cleaner but who had moved into his house. The woman accompanied the man on both his visits to the solicitor to give instructions and to execute the will. There was a dispute over how long the man had known the woman but the judge rejected the claimants’ case that they had only been acquainted for several months before his death.

     
     

140. The beneficiaries of a previous will challenged the will, attempting to establish a case of undue influence purely on circumstantial evidence. The challenge failed, Mrs Justice Proudman noting that there was “no evidence, including circumstantial evidence, of coercion or victimisation in this case”.

     
     

141. While we cannot guarantee that our proposals (if adopted) would change the outcome of the case, it is clear that the nature of the inquiry would be different. On either the structured or discretionary approach the court would take account of whether a relationship of influence persisted and whether the disposition called for explanation. In effect, circumstantial evidence of behaviour short of coercion or victimisation could have been decisive in the case.

     
     

     
     

     129 [2012] WTLR 2, cited in R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession

     (13th ed 2016) p 91.

142. Secondly, our proposal should give litigants greater confidence in bringing a challenge on the basis of undue influence. Professor Kerridge explains the present situation as follows:

     
     

     It is almost certain that no challenge at all is launched against some thoroughly suspicious wills, while there are other cases where the propounders of the documents which invite serious investigation enter into compromises with their opponents, who are persuaded not to proceed to litigation.130

     
     

143. Thirdly, concern might be raised that our provisional proposal could bring about an undesirable increase in litigation. We consider that it would not. While there may be an increase in litigation initially, that increase is likely to fall away once the law “beds in” and has become well settled. Furthermore, much of the litigation brought on the basis of a new undue influence provision would probably have been brought on the basis of a lack of knowledge and approval; that is, some new proceedings will represent a change of basis rather than an increase in litigation. Where litigation on the basis of undue influence is brought that would not have been brought merely on the basis of knowledge and approval, we believe that it would be justified on the basis that is provides greater protection for testators.

     
     

     Knowledge and approval

144. If a statutory doctrine of testamentary undue influence is introduced, then the role that needs to be played by knowledge and approval can and should be clarified in statute. This area of the law can then be confined to performing the function described in Ark v Kaur of ensuring that the testator knows that he or she is making a will and what its terms are, and intends those terms to be incorporated and given effect in the will.131 In other words, “approval” is confined to the narrower understanding of the concept outlined above.

     
     

145. Importantly, on this narrower approach, knowledge and approval is not directed at questioning whether terms of the will have been freely decided by the testator in an exercise of testamentary freedom. That means that a testator may be found to have knowledge and approval of a will, regardless of whether or not the intention to execute the will was brought about by undue influence. That does not mean, however, that the will is valid; the will would be struck down through undue influence. We consider that this approach improves the protection available to vulnerable testators because it focuses the court’s mind separately on issues of process and substance.

     
     

146. As we have discussed above, we think that there are cases under the current law where want of knowledge and approval is given as the reason for finding a will to be invalid where the circumstances of the case are, in fact, suggestive of undue influence. Under the present law of undue influence, it may too difficult to establish undue influence in the particular case. Cases involving “suspicious circumstances” have therefore been considered within the context of knowledge and approval. We think that the combined effect of our provisional proposals regarding undue influence and knowledge and approval should be that cases involving suspicious circumstances would instead be

     
     

     
     

     130 R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016) p 99, fn 220.

     131 [2010] EWHC 2314 (Ch), (20100 34, at [19].

     dealt with by reference to a reformed law of testamentary undue influence that makes use of statutory presumptions. For cases that do not involve suspicious circumstances, such as Gill v Woodall,132 the key issue, other than the testator’s capacity, would continue to be whether the testator knew and approved of the terms of the will.

     
     

147. We do not offer a view on the continuing relevance of presumptions in the law of knowledge and approval133 beyond observing that:

     
     

     1. such presumptions appear to have less relevance in the current state of the law given the holistic, one-stage approach to knowledge and approval preferred by the Court of Appeal in Gill v Woodall;134 and

        
        

     2. the effect of any such presumptions would be weakened by adoption of our provisional proposals in this area.

        
        

148. While reform could proceed by way of clarifying the presumptions that apply in the area of knowledge and approval135 we hope that our provisional proposals offer, instead, a way of simplifying the law by reducing the overlap between undue influence and knowledge and approval.

     
     

149. To summarise, in terms of substance, the court is directed, through the law of knowledge and approval, to consider whether the testator approves the content of the document and intends that document to be his or her will. As a matter of process, though undue influence, the court will ensure that the will was freely executed by the testator.