Modernising Wills Law
Volume I: Report
Law . .
Commission
Reforming the law
(Law Com No 419)
Modernising Wills Law
Volume I: Report
Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965
Ordered by the House of Commons to be printed on 15 May 2025
HC 861-I
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The Law Commission was set up by the Law Commissions Act 1965 for the purpose of
promoting the reform of the law.
The Law Commissioners are:
The Right Honourable Lord Justice Fraser, Chair
Professor Nick Hopkins
Professor Penney Lewis
Professor Alison Young
The joint Chief Executives of the Law Commission are Joanna Otterburn and Roshnee
Patel.
The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London
SW1H 9AG.
The terms of this report were agreed on 24 March 2025. All website links were correct as at
31 March 2025.
The text of this report is available on the Law Commission's website at
http://www.lawcom.gov.uk.
Contents
Testamentary freedom and the law of succession
Probate and estate administration
Our draft Bill for a new Wills Act
Rules of practice and procedure
The test governing testamentary capacity
Developments since the Consultation Paper
Developments since the Consultation Paper
The law governing statutory wills
Developments since the Consultation Paper
The procedure governing statutory wills
The desirability or practicality of a scheme
Developments since the Consultation Paper
Support in decision-making more broadly
The purpose of formality requirements
The current law of formalities
Structure of our consideration of formalities
Overarching policy considerations
The formality requirements and barriers to will-making
Formalities deterring will-making
Evidence on invalidity for non-compliance with formalities
Developments since the Consultation Paper
Introducing a dispensing power
The individual elements of the proposed power
Introduction of a dispensing power
Nature of the dispensing power
Elements of the dispensing power
Gifts to those signing on behalf of the testator
Extending the invalidity rule to cohabitants
Saving gifts that would otherwise be void
Permitting electronic wills on the face of a new Wills Act
The formality requirements for electronic wills
The formality requirements for paper wills
Alteration, revocation and revival
The interaction between paper and electronic wills
The application of the general law of wills
Developments since the Consultation Paper
Developments since the Consultation Paper
The age of testamentary capacity
The age of testamentary capacity
Developments since the Consultation Paper
Discussion and recommendations
The age of testamentary capacity
The order of interpretation and rectification
Developments since the Consultation Paper
Existing provisions in the Wills Act 1837
Developments since the Consultation Paper
Admissibility of evidence as an aid to interpretation
Interaction with the dispensing power
Incomplete transfers and options
Changes in form but not substance
Simultaneous death and destruction
Revocation by another will, written intention to revoke, and destruction
Developments since the Consultation Paper
Revocation by marriage or civil partnership
Consultation and supplementary consultation
The requirements for a mutual will
Mutual wills and claims for financial provision
Developments since the Consultation Paper
Contemplation of impending death
Developments since the Consultation Paper
VOLUME II: draft Bill for a new Wills Act
To the Right Honourable Shabana Mahmood MP, Lord Chancellor and Secretary of
State for Justice
1.1 When someone dies, their property goes to those they leave behind. The law
governing succession determines who receives the property a person owns at their
death, referred to as an “estate”.
1.2 Although in some jurisdictions distribution of property on death is made in accordance
with strict rules regarding which family members receive what size of share, in
England and Wales the concept of “testamentary freedom” is a foundational principle:
that the person who owns the property can decide in advance of their death who is to
inherit what. How property passes on death therefore depends on whether the person
died with a valid will in place. Such a person is called a “testator”, having died
“testate”: that is, with a will. If the person did not have a valid will in place, they have
died “intestate”, and the rules governing intestacy apply to determine who receives
their property. 1A person may also have a valid will that deals with only part of their
estate; accordingly, they would die partially intestate, with the intestacy rules
governing the part of their estate not disposed of by their will.
1.3 This project is concerned with the law governing wills, rather than with the rules that
apply on intestacy.
1.4 Wills law is important. It can potentially affect everyone: many people will make a will
themselves, often later in life; and many people may benefit under someone else’s
will, such as one of their parents’ wills. Wills are also an important source of charitable
funds, with many charities receiving a significant portion of their funding from legacies
left to them in wills.2
1.5 The law governing wills is very old: the main statute is the Wills Act 1837, and the
authorities for many of the common law rules are from the 19th century or earlier.
However, age alone is not a good reason to reform the law. Old law may have stood
the test of time. Indeed, in our work, we have discovered that many of the rules
governing wills are aimed at achieving policies or safeguards that reflect human
nature and commonly held beliefs and expectations that are as true or necessary
today as they were in previous centuries.
1.6 However, some things have changed. As Professor Mark Johnson recently remarked:
The Suffragette movement, two world wars, the end of the British Empire, the
formation of the NHS, and the advent of the internet era are just a handful of
monumental changes to British society which have occurred since the Wills Act
1837 was given Royal Assent by Queen Victoria days after she ascended to the
throne.3
Most people today will live longer than their ancestors did, and, as a consequence,
more people will suffer from ill health and a decline in their mental acuity that are
commonly associated with old age. The property that the average person owns,
particularly real property, may be more valuable than it was in the past. In the past,
documents would have been in paper form; but documents in electronic form are now
far more prevalent than paper documents.
1.7 Accordingly, the aim of our project has been to review the law of wills to ensure that
this important area of law is fit for purpose today.
1.8 A will is the primary way that a person can determine what happens to their property
when they die.4 The ability to make a will, and in whatever terms the testator wishes,
is a fundamental principle of the law of England and Wales. Testamentary freedom
has not always applied in England and Wales and is not enjoyed to the same extent in
other legal jurisdictions.5 The principle of testamentary freedom is a valuable aspect of
owning property, giving owners the right to give their property to others on their death.
Testamentary freedom also reflects the idea that the testator themselves is best able
to assess their responsibilities to and the needs of their families and friends in order to
determine the fair distribution of their estate. As Chief Justice Cockburn explained in
the seminal 19th century case Banks v Goodfellow:
the instincts, affections, and common sentiments of mankind may be safely trusted
to secure, on the whole, a better disposition of the property of the dead, and one
more accurately adjusted to the requirements of each particular case, than could be
obtained through a distribution prescribed by the stereotyped and inflexible rules of a
general law.6
1.9 A person is not required to make a will. If they do not, the intestacy rules will apply.
These rules - a hierarchy of the family members who will receive the deceased’s
estate and in what order - have been crafted to make provision for what might be
thought to be fair and reasonable in the majority of cases.7 But because they are
M Johnson, “Modernisation of will-making formalities requires a fulsome embrace of technology” (2025)
31(2) Trusts and Trustees 56, 56.
There are other mechanisms through which that property passes on death, outside a will or the intestacy
rules. These mechanisms are sometimes called “will substitutes”. We discussed them in the Consultation
Paper, para 1.19.
For example, due to heirship rules. For a brief history on the ability to dispose of property by will in England
and Wales, see M Dixon, J Bignell, and N Hopkins, Megarry & Wade: The Law of Real Property (10th ed
2024) para 13-002.
Banks v Goodfellow (1870) LR 5 QB 549.
We have previously considered the rules and made recommendations for their reform in our project on
Intestacy and Family Provision Claims on Death. Our recommendations were implemented in the
Inheritance and Trustees’ Powers Act 2014 except our recommendations in relation to cohabitants, which
designed to reflect what it is assumed that the majority of people will want to happen,
the intestacy rules will not produce the result that many people would in fact want, in
the light of their own lives, families, passions, and commitments. As Chief Justice
Cockburn said, they are general and inflexible. Consequently, it is important that
making a will is accessible to everyone. No one is required to make a will, but
everyone who wishes to make a will should be able to make one, subject to the
requirements designed to protect testators.
1.10 Even if a person does make a valid will, testamentary freedom is not absolute. Despite
the general premise that fairness and justice in most cases can be best determined by
the testator themselves, not everyone is motivated by those aims when they make
their will. Accordingly, the law has more recently permitted people falling within certain
categories of relationship to the deceased - generally close family members - to
apply to court for reasonable financial provision from the deceased’s estate, whether it
is being distributed according to their will or under the intestacy rules. Family
provision, as it is called, is governed by the Inheritance (Provision for Family and
Dependants) Act 1975.
1.11 In this project, we have focused on the law governing wills. We have not considered
the rules governing intestacy or financial provision on death.8
1.12 But what is a will? There is no single authoritative definition.9 One definition is that:
A will is an instrument by which a person makes a disposition of his property to take
effect after his decease and which is in its own nature ambulatory and revocable
during his life.10
1.13 The various definitions that have been given of a will11 usually express three key
characteristics: that it expresses testamentary intentions; that it is ambulatory; and
that it is revocable. These characteristics distinguish a will from instruments and
dispositions that are intended to take effect during the testator’s life, for example, a
deed.
1.14 A will must express the testator’s intentions about what is to happen to their property
on their death. This is often expressed in the law by the Latin term animus testandi:
the intention to make a will or testamentary intention. This characteristic distinguishes
wills from preparatory documents or ideas, which do not reflect the testator’s settled or
remain unprovided for in the intestacy rules: see https://lawcom.gov.uk/project/intestacy-and-family-
provision-claims-on-death/; and Administration of Estates Act 1925, s 46.
8 Both of which are areas of the law that we have previously reviewed: see
https://lawcom.gov.uk/project/intestacy-and-family-provision-claims-on-death/.
9 A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 1-001.
10 R Jennings, Jarman on Wills (8th ed 1951) p 26, quoted with approval in Baird v Baird [1990] 2 AC 548 at
556, as cited in B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 49.
11 For example, “a will is an instrument that both contains and is made with the intention that it should be a
revocable ambulatory disposition of the maker’s property which is to take effect on death”: M Dixon, J
Bignell, and N Hopkins, Megarry & Wade: The Law of Real Property (10th ed 2024) para 13-014. See also L
Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute 7 Will IV & 1 Vict c 26 for the
Amendment of the Laws with Respect to Wills (1838) pp 5 and 6.
final intentions about their estate, as well as from their intentions about what is to
happen to their property during their life.3
1.15 That a will is ambulatory means that it operates at the testator’s death but not before.
A will does not confer any benefit on anyone during the testator’s life, and the property
on which it operates can only be ascertained at the testator’s death. Moreover, a will
ultimately might not confer any benefit on anyone, even after the testator dies: the
testator might dispose of their property before they die; the beneficiary or beneficiaries
might predecease the testator; or the testator may have insufficient assets to cover
their debts and liabilities. Accordingly, a will has “a mobile, shifting character”.4
1.16 A will is also necessarily revocable. After making a will, the testator remains free to
revoke it, with or without making a new will. Even if a testator states in their will that it
is irrevocable, the statement is not binding, and the testator will remain able to revoke
their will later if they wish.5
1.17 If an instrument has these three characteristics, then it is a will, even if it is not in the
common or standard form of a will. Accordingly, a variety of instruments have been
given testamentary effect, including a letter, a promissory note, and a cheque to take
effect after death.6 However, as we discuss at paragraph 1.68 and following below,
something that is a will because it has the characteristics of a will is not necessarily a
valid will.
1.18 Because a will is an expression of the whole of a person’s testamentary intentions, a
person’s will may be contained in multiple documents or instruments. Their will is the
“aggregate” of all of their testamentary documents.7 However, for simplicity, we tend
to refer to each testamentary document as a will or, in relation to a document that
supplements an existing will, as a codicil.
1.19 It is also worth noting that although the definition of a will focuses on the disposition of
property, a will can do more than dispose of property. For example, it might appoint an
executor, trustee, or guardian for the testator’s minor children, or express the
testator’s wishes about what should happen with their body after they die.8
1.20 Our project on wills has not involved consideration of the law governing probate and
estate administration. But probate and estate administration are part of the wider
context in which the law of wills operates.
1.21 After a person dies, their personal representatives will usually be required to obtain a
grant of representation to allow them to administer or deal with their estate. 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.9
1.22 A grant of representation is either a grant of probate, obtained where the personal
representatives are appointed in the will, or a grant of administration, granted where
the person died intestate or the will does not appoint executors.10 Where the personal
representatives are appointed under a will they are called executors; those appointed
by a grant of administration are called administrators. 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.11
1.23 Probate of a will can either be obtained in common or in solemn form. A grant in
common form is used when there is no contention about the validity of the will, and the
validity of the will is decided by a probate registrar. A grant in solemn form is
necessary where there is contention about the validity of the will (including a will which
has already been proven in common form), and the validity of the will is pronounced
by the court.12
1.24 The law governing wills is largely a product of the Victorian era. It is governed by both
legislation - primarily, the Wills Act 1837 - and case law, some of which has been
developing for hundreds of years. 13The Wills Act 1837 has been amended, and
judge-made case law has developed, in response to modern circumstances and
understandings. Nevertheless, we consider the law of wills to be in need of
comprehensive review to ensure that the law governing this important topic remains fit
for purpose today. That is what this project has sought to do.
1.25 Accordingly, in this project we have conducted a general review of the law governing
wills. However, we have not considered every possible topic that falls within wills law
as part of our work. Instead, the project has focused on the areas that we have heard
- from stakeholders in our 12th Programme of Law Reform14 and during the course of
this project - are in need of reform. This has included:
(1) the formality requirements to make a valid will, including the possibility of
electronic wills and a power to dispense with the required formalities on a case-
by-case basis;
(2) the substantive requirements to make a valid will, specifically the requirements
for capacity and knowledge and approval, and the doctrine of testamentary
undue influence;
(3) the age at which a person may make a valid will;
(4) the interpretation and rectification of wills, as well as the ademption of gifts in
wills;
(5) the requirements to revoke a will; and
(6) the doctrines of mutual wills and donatio mortis causa.
1.26 In this project, we have aimed to make recommendations to reform the law so that it
better -
(1) supports the exercise of testamentary freedom;
(2) protects testators, including from undue influence and fraud; and
(3) increases clarity and certainty in the law where possible.
1.27 Our project covers the law governing wills in England and Wales as a single legal
jurisdiction. The Wills Act 1837 and the common law governing wills apply to both
England and Wales. Succession law is not devolved to the Senedd, as it is part of the
private law, which is reserved to the United Kingdom Parliament.15 Although the
Senedd can modify succession law for a purpose which falls within its competence,
under the purpose caveat, 16the purpose of our recommendations is the amendment
of succession law. Accordingly, our recommendations and our draft Bill for a new Wills
Act apply to England and Wales.
1.28 Our work on this project has spanned a long period of time, much longer than an
ordinary Law Commission project. That is a consequence of our agreement with
Government to pause the project, a pause that lasted three years.
1.29 The wills project stems from our 12th Programme of Law Reform, and we began the
project in early 2016. In July 2017, we published the Consultation Paper, with a four-
month consultation period following. When the consultation period closed in
November 2017, we began analysing consultees’ responses and formulating our final
policy.
1.30 In 2019 we paused the wills project to undertake a project on the law governing
weddings, having agreed to Government’s request to prioritise work on weddings. The
weddings project itself was delayed by the COVID-19 pandemic, which emerged at
the time that we were preparing to launch our consultation. In the end, we published
our final Report on weddings law in July 2022.17
1.31 We re-commenced the wills project shortly afterwards, in the autumn of 2022. With the
passage of time since we had paused the project, and in particular the experience of
the COVID-19 pandemic, we re-examined the issues we had consulted upon in the
project. We identified two issues on which we wondered if consultees’ views had
changed.
1.32 At the time of the Consultation Paper in 2017, the case for allowing wills to be made
and stored in electronic form was relatively novel. In 2023, we wondered if that might
no longer hold true. Between 2017 and 2023, the recognition of the use of digital
documents and signatures in other contexts, as well as huge developments in
technology, increased, and has continued to do so. Moreover, during the COVID-19
pandemic, technology facilitated will-making in a new way: Government amended the
Wills Act 1837 18to provide in section 9 that “presence” for the purposes of a witness’s
presence included “presence by means of videoconference or other visual
transmission”.19
1.33 There had also been increasing concerns about “predatory marriage” since 2017. A
predatory marriage is where a person marries someone, often someone who is elderly
or who lacks the mental capacity to marry, as a form of financial abuse. Although in
the 2017 Consultation Paper we had considered the need to protect vulnerable
testators in relation to the rule that a marriage or civil partnership revokes a will, our
understanding of the risk and incidence of predatory marriage was limited. We
therefore wondered whether the increasing concerns about predatory marriage might
cast doubts on whether a marriage or civil partnership should continue to revoke a
will.20
1.34 We therefore decided to re-consult on the two discrete issues of electronic wills and
the rule that a marriage or civil partnership revokes an existing will through a
Supplementary Consultation Paper. We published the Supplementary Consultation
Paper in October 2023. The supplementary consultation period closed in December
2023.
1.35 Throughout this project, we have benefited enormously from the experience and
expertise of stakeholders and consultees.
1.36 We have held two public consultation periods, during which we both spoke to and
heard from a wide range of interested people and organisations. In our 2017
consultation, we conducted consultation events around England and Wales. We
received consultation responses from approximately 180 consultees, who included
academics, representative legal bodies, law firms, practising lawyers, judges, and
charities. In our supplementary consultation in 2023, we again received approximately
180 responses, again from legal professionals, academics, and charities. Due to the
focus of the Supplementary Consultation Paper, we also received responses from
software providers and groups advocating for or working with vulnerable adults.
1.37 We have also benefited from engagement with stakeholders throughout our project.
We are particularly grateful to members of our advisory groups for their assistance
with our project. Members of the first advisory group provided us with policy feedback
in relation to our earlier policy thinking, in 2016 and 2018, and members of the second
advisory group, in late 2024, provided us with expert advice in relation to our draft Bill.
The members of our advisory groups are listed at paragraph 1.79 below.
1.38 We are grateful to everyone who has contributed to this project.
1.39 We have considered every consultation response. However, we cannot deal with
every consultation response, or every point raised in them, in this Report. Our focus is
on those points that, in our view, are necessary to discuss to explain how we reached
our final policy recommendations. Alongside this Report, we are publishing a
statistical analysis of consultation responses. In due course, we will also publish the
consultation responses that we received.
1.40 In this Report, we refer to consultees as they were at the time they responded. We
appreciate that with the passage of time, and particularly the time since the 2017
consultation, consultees’ names or affiliations may have changed. However, for
simplicity and so that we can properly attribute views by reference to the written
consultation responses we received, we identify consultees as they were in 2017 and
2023, respectively.
1.41 In this Report, we make recommendations which span various aspects of the law
governing wills. Our recommendations do not replace the whole of the existing law;
wills law is an enormous body of law, and by and large that law works well. Our
recommendations instead modify specific aspects of the law. The reforms that we
recommend are nevertheless wide-ranging and significant.
1.42 We first consider the topic of testamentary capacity, in Chapter 2. Considering the test
of capacity, which is currently governed by the 1870 case Banks v Goodfellow, 21we
recommend that the test in the Mental Capacity Act 2005 (“MCA”) should be adopted
to determine whether someone has testamentary capacity. 22As we explain in Chapter
2, we do not think that this will result in a fundamental change in the law governing
testamentary capacity: the Banks and MCA tests are very similar. But this change is
nevertheless worthwhile, because it will bring consistency and clarity to the law
governing testamentary capacity. The Banks test currently applies where a person,
such as a solicitor or will writer, is contemporaneously assessing whether the testator
has capacity to make a will. The Banks test also applies where the court is
determining whether the testator’s will is valid, when that will is submitted for proof
after the testator has died. In contrast, the MCA applies when the Court of Protection
is assessing someone’s capacity to make a will, in order to determine whether it can
make a statutory will on their behalf. We do not think it is justifiable to have two legal
tests governing the same question, depending on who is asking and why. We explain
in detail what changes we consider will arise from adopting the MCA test.
1.43 In Chapter 2, we also recommend that the statutory presumption of capacity in the
MCA should apply to will-making, and that the rule in Parker v Felgate23 - which
applies as an exception to when the testator must have testamentary capacity -
should be retained.24 Furthermore, we recommend that detailed guidance on
assessing testamentary capacity should be outlined in the MCA Code of Practice.25
1.44 In Chapter 3, we consider the closely related issue of statutory wills: wills made by the
Court of Protection on behalf of a person who lacks the capacity to make their own, in
accordance with the best interests test under the MCA. We endorse the Law
Commission’s earlier recommendation in our Mental Capacity and Deprivation of
Liberty Report that section 4(6) of the MCA should be amended to require that
decision-makers give “particular weight” to the person’s wishes and feelings when
determining their best interests. 26We also recommend that the existing limitation on
the effect of gifts in a statutory will of immoveable property located in other
jurisdictions or of movable property from foreign-domiciled testators should be
abolished.27
1.45 We then consider the issue of supported will-making in Chapter 4. Although we do not
recommend that a formal scheme specific to supported will-making should be
introduced, we endorse another of the recommendations from the Mental Capacity
and Deprivation of Liberty project, for a general supported decision-making scheme to
be introduced. 28Our view is that this general scheme should apply to will-making, and
we outline our thoughts about the protections that will be necessary to consider in
applying the scheme to will-making.
1.46 In Chapter 5, we consider the formality requirements necessary to make a valid will.
We do not recommend any fundamental changes to the formality requirements that
are currently found in section 9 of the Wills Act 1837. But we do recommend a small
change: we recommend that the requirement in section 9 for the witnesses to attest
when they sign the will in the presence of the testator should also apply when the
witnesses acknowledge their signatures in the presence of the testator. 29We have
also sought to make the meaning of the requirement to attest clear. In addition, we
recommend reform in relation to an exceptional category of wills: privileged wills,
meaning wills made by a category of privileged testators, largely those in the Armed
Forces, which can be validly made without complying with any formalities at all. We
recommend that the law should continue to make provision for privileged wills.
However, we recommend that the scope of the privilege should be confined: first to
those serving in the British Armed Forces on active service, and secondly to civilians
who are subject to service discipline and who, if they were serving in the Armed
Forces, would be on active service.30
1.47 In Chapter 6, we recommend that a dispensing power should be introduced. A
dispensing power can apply to a will which has not complied with the formality
requirements; it allows the court to determine that the will should nevertheless be
deemed to be a formally valid will. We recommend the introduction of an intention-
based dispensing power, meaning that the court will be able to exercise the power
where it determines that the will represents the person’s testamentary intentions; it will
provide a remedy in cases where the testator has failed to comply with the formality
requirements, but their intentions are nevertheless clear.31
1.48 We consider the rules relating to the validity of gifts to witnesses in Chapter 7. We
recommend that the rule that gifts to a witness to the will and to their spouse or civil
partner are invalid should be extended to apply to gifts to a person who signs the will
on behalf of the testator, as well as to their spouse or civil partner. 32We recommend
that this invalidity rule should also apply to cohabitants of any witness or person who
signs on the testator’s behalf. 33However, to prevent this rule from applying rigidly and
unfairly, we also recommend that a gift that would be invalid under the rule should be
able to be permitted by the court if the court considers it just and reasonable to do
so.34
1.49 In Chapter 8, we consider the topic of electronic wills, meaning wills in electronic
rather than paper form. Having consulted on the issue twice, in both 2017 and 2023,
we recommend that electronic wills should be expressly permitted under a new Wills
Act.35 Whether a will is in paper or electronic form is a matter of form, and so
exclusively a matter of the formality requirements. Accordingly, so long as the
formality requirements are met, paper and electronic wills will be equally valid, and will
be able to alter, revoke and revive each other. 36We recommend that electronic wills
should be required to comply with the same formality requirements that apply to paper
wills, except that the requirement of “presence” should be capable of being satisfied
by remote presence. However, we also recommend that electronic wills should have
to comply with additional requirements in order to be valid, specifically that a reliable
system must be used in order to link the testator (or the person signing on the
testator’s behalf) and the witnesses with their signatures at the time of signing; identify
the original or authentic will from copies of it; and protect the original or authentic will
from unauthorised alteration or destruction.37 We also recommend that a regulation-
making power should be introduced, under which the Secretary of State could set out
how electronic wills may or must fulfil the formality requirements.38
1.50 In Chapter 9, we consider the law governing testamentary undue influence and the
substantive requirement that the testator know and approve their will at the time of
making it, making recommendations in relation to both.
(1) We recommend that statute should enable the court to infer that the testator
was subject to testamentary undue influence in respect of the will as a whole or
of any disposition in the will. The court will be able to make this inference where
it is satisfied that there are reasonable grounds to suspect undue influence,
considering in particular evidence about any relationship of influence between
the person presumed to have exerted undue influence and the testator, that
person’s conduct in relation to the making of the will, and the circumstances in
which the will was made, among any other relevant factors. This
recommendation seeks to address the difficulty under the current law of
successfully proving testamentary undue influence.
(2) We recommend that the new Wills Act should place on a statutory footing the
common law requirement of knowledge and approval. This recommendation
seeks to ensure that the requirement for knowledge and approval plays its
proper role in ensuring that the testator intended to make the will in the terms
they did, while also preventing the requirement from being used as an indirect
or roundabout way of alleging undue influence.
1.51 In Chapter 10, we assess whether children under 18 years old should be able to make
a valid will. We explain our view that they should, and we recommend that the age at
which a person is able to make a will should be lowered from 18 to 16 years of age.39
We further recommend that the Family Court should have the power to authorise a
child under the age of 16 to make a will, using the common law Gillick competence
test40 to determine whether the child has the necessary understanding to do so.41
1.52 In Chapter 11, we review the related topics of interpretation and rectification.
(1) We make only one limited recommendation in relation to the law of
interpretation, which will address a very specific lacuna in the law. That is, we
recommend that there should be a new interpretive provision to apply where the
testator has made a gift to a non-charitable body which, since the date of the
will, has merged with another body or has been reconstituted. 42In such a case,
the successor body should be interpreted to be the original body. The effect will
be that the gift to the original body will not fail due to the body having ceased to
exist by the time of the testator’s death (under the doctrine of lapse).
(2) We also make only one recommendation in relation to rectification, but it is a
recommendation for significant reform. We recommend that the power to rectify
a will should be expanded in scope, so that a will can be rectified where the will
fails to carry out the testator’s intentions due to a failure by the testator or the
drafter of the will to understand the meaning or direct effect of the words used in
the will.43
1.53 In Chapter 12, we consider the doctrine of ademption, under which a specific gift of
property fails if the property is not in the testator’s estate or has changed in substance
by the time they die. We recommend three changes to the law, to prevent the
operation of ademption in specific circumstances.
(1) We recommend that a gift in a will should not be adeemed if the gifted property
is disposed of by a donee acting under a Lasting Power of Attorney (“LPA”), just
as it is not adeemed under the current law if the property is disposed of by a
deputy acting under the MCA.44
(2) We recommend that where the testator exchanges contracts to sell the gifted
property, or grants an option to purchase the gifted property, but dies before the
sale is completed or the option is exercised, the contract or option should not
adeem the gift. Accordingly, the beneficiary of the gift will be entitled to the
property subject to the contract or option.45
(3) We recommend that, where property is destroyed or lost simultaneously with
the testator dying, or the order cannot be determined, the testator should be
presumed to have died first. This will have the result that the destruction or loss
of the property does not adeem any specific gift of the property in the testator’s
will.46
1.54 We review the law governing the revocation of wills in Chapter 13. We do not make
any recommendations to amend the law on revocation by a later will or codicil, by
written intention to revoke, or by destruction. In our view, the law on the ways that the
testator can intentionally themselves revoke their will operate well. We do, however,
recommend reform to revocation of wills by operation of law: we recommend that the
existing rule that the testator’s will is automatically revoked when they get married or
form a civil partnership should be abolished.47 This change will remove an incentive
for predatory marriage.
1.55 In Chapter 14, we consider the topic of mutual wills: wills made under an agreement
that the testators will not alter their wills after the first of them dies. We recommend
that property subject to a mutual wills arrangement should be treated as part of the
testator’s property out of which the court can make an order for reasonable financial
provision to a family member or dependent of the testator under the Inheritance
(Provision for Family and Dependants) Act 1975.48
1.56 We consider the doctrine of donatio mortis causa (a gift made in contemplation of and
conditional on death) in Chapter 15. However, we do not recommend any reform or
modification to the doctrine.
1.57 Finally, in Chapter 16, we briefly consider the requirement that the appointment in a
will of a guardian for the testator’s child be dated. We do not recommend any reform
in relation to this point.
1.58 Chapter 17 lists all the recommendations we make in this Report.
1.59 As part of our project, we have also produced a draft Bill for an entirely new Wills Act.
If enacted, our draft Bill would repeal and replace the Wills Act 1837.
1.60 Our draft Bill for a new Wills Act does a number of things. It amends and restates
provisions that are in the current Wills Act 1837, to reflect our policy recommendations
to change the law. It codifies and modifies aspects of the common law governing wills,
again to reflect our policy recommendations. Furthermore, it restates and consolidates
existing provisions in the Wills Act 1837 where we have no policy to change the law.
Similarly, the draft Bill in some cases repeals provisions of the Wills Act where we
have concluded that they no longer serve any function.
1.61 In the 2017 Consultation Paper, we consulted on some of the old interpretation
provisions in the Wills Act 1837. Consultation responses provided us with helpful
information about the potential continuing use of those provisions. We did not consult
on all such provisions in the Wills Act 1837, however. Our research has suggested
that most of these provisions remain necessary, and we have sought to do so by
restating them in our draft Bill in a modern and accessible way, using updated and
simplified language.
1.62 We have also consolidated provisions governing wills that are currently in other Acts
into our draft Bill for a new Wills Act. For example, we have restated in our draft Bill
some of the provisions which address wills in the Law of Property Act 1925 and the
Administration of Justice Act 1982.
1.63 Throughout this Report, we explain in detail how our draft Bill implements each of our
recommendations. We have also drafted Explanatory Notes to accompany our draft
Bill, which set out how the draft clauses operate.
1.64 We highlight some specific points about our draft Bill below.
1.65 In this project, we have used the term “testator”. We have used it as a gender-neutral
term, avoiding “testatrix”, the traditional word for female testators.
1.66 We considered in the Consultation Paper whether the term “testator” should be
replaced, 49and asked a consultation question on whether a less technical term should
be used in a new Wills Act.50 The substantial majority of the consultees who
responded disagreed with replacing testator with another term.51
1.67 We have therefore retained the term “testator” for our draft Bill for a new Wills Act, as
a gender-neutral term. The term is defined in clause 23(1) of our draft Bill.
1.68 Our draft Bill refers to both “a will” and “a valid will”. We have distinguished between
these two concepts where we have thought it necessary to do so.
1.69 At paragraph 1.12 and following above, we discuss the concept of “a will”. As we
explain, a will has three key characteristics. But none of those characteristics is that
the will is valid. Nevertheless, some court judgments and commentators use the term
“will” to mean a “legally valid will”, for example, distinguishing between a “will” and a
“purported will”.52
1.70 However, we have followed the approach in the Wills Act 1837 by using “will” more
broadly, to include wills that may not be valid, either formally or substantively. We
have found it useful, in our draft Bill, to be able to describe something that is a will (or
an alteration to or revocation or revival of a will) in the sense that it expresses
testamentary intent, is ambulatory, and revocable, so that it is clear that a document
must broadly be a “will” in order for it to be possible to apply the requirements for
formal and substantive validity to it. For example, a document that seeks to dispose of
the person’s interest in property during their lifetime cannot be a valid will, even if it
meets the formality and substantive validity requirements in the draft Bill. This
approach also enables our draft Bill to distinguish more easily between wills,
alterations, revocations and revivals that are not valid, and those that are.53
1.71 Creating a draft Bill for a new Wills Act has meant that the Bill must make
consequential amendments to the statute book, for example, replacing references to
the Wills Act 1837 with references to the draft Bill. Our draft Bill includes all of the
consequential amendments to primary and secondary legislation that are necessary.
1.72 The draft Bill does not include consequential amendments that are necessary to rules
of procedure and practice. Specifically, it does not include amendments that are
necessary to the Non-Contentious Probate Rules 1987,54 the Civil Procedure Rules
1998,55 or the Family Procedure Rules 2010.56
(1) Were our draft Bill to be enacted, the Non-Contentious Probate Rules 198757
will have to be reviewed and updated. Amendments will be necessary to reflect
the replacement of the Wills Act 1837, such as to rules 14, 15, 17, 18.
Amendments will also be necessary to reflect the consolidation of the provisions
governing wills in the Administration of Justice Act 1982 within a new Wills Act,
for example, rule 11. Moreover, the rules will need to be updated to reflect our
policy recommendations: for example, rules will be necessary in relation to the
proving of electronic wills.
(2) Amendments will also be necessary to the Civil Procedure Rules 1998.58
(3) Finally, amendments will be necessary to the Family Procedure Rules 2010, to
reflect our recommendation that a child can apply to the Family Court to be
authorised to make a will, in Recommendation 24.59
1.73 We have asked several consultation questions, across both the Consultation Paper
and Supplementary Consultation Paper, aimed at gathering information and evidence
about the impact of the current law as well as the impact of potential reforms. Two
questions, one each from the Consultation Paper and Supplementary Consultation
Paper, sought to elicit information about impacts generally, including financial
impacts.60 Another question in the Supplementary Consultation Paper asked whether
our possible reforms could have equality impacts, meaning advantages or
disadvantages arising from particular characteristics, including the protected
characteristics under the Equality Act 2010, that is, based on age; disability; gender
reassignment; marriage and civil partnership; pregnancy and maternity; race; religion
or belief; sex; and sexual orientation.61
1.74 Responses to these questions have helped us in considering the impact of our
recommendations for reform. We outline these impacts in the Impact Assessment,
which is published separately.
1.75 We are grateful to the individuals and groups who met with us during the course of the
project.
1.76 We would also like to thank the individuals and organisations who helped us to
organise, or invited us to particate in, events during our consultation periods and
throughout the project, including STEP, 62the Law Society, the Chancery Bar
Association, and, for enabling us to discuss the issues relating to children making wills
with young people, BVL.63
1.77 We are also very grateful to the practitioners and officials from law reform bodies in
other jurisdictions who have generously taken the time to share their experiences with
recent law reforms in those jurisdictions with us. We would like to thank in particular
the New Zealand Law Commission, the British Columbia Law Institute, the Alberta
Law Reform Institute, the Victorian Law Reform Commission and the Queensland Law
Society for their assistance in relation to the dispensing power in those jurisdictions.
1.78 We are thankful for the software providers who gave us demonstrations or offered to
give us demonstrations to help us understand how electronic wills could work,
including Videosign, Digidenity and Adobe, DocuSign, Scrive, and Ascertia,
demonstrations that were all kindly organised by Richard Oliphant.
1.79 We are especially grateful to members of our advisory groups who, at different stages
of the project, generously shared their time and expertise with us: Francis Barlow KC;
Professor Peter Bartlett; Ian Bond; Dr Juliet Brook; Emily Deane; Thomas Dumont KC;
Matthew Evans; Henry Frydenson MBE; Professor Birke Hacker; Sion Hudson; David
Isbister; Professor Robin Jacoby; Christopher Jessel; Byron Jones; Professor Roger
Kerridge; Stephen Lawson; Alexander Learmonth KC; Professor Ying Liew; Professor
Paul Matthews; Brian McMillan; Chris Millward; Professor Daniel Monk; Penelope
Reed KC; Mr Justice Marcus Smith; Dr Brian Sloan; and retired Chancery Master Paul
Teverson.
1.80 We are also very grateful to Professor Rosie Harding, Dr Ezgi Ta§cioglu and
Magdalena Furgalska. To assist and inform our project, they conducted empirical
research into the experience of intellectually disabled people when making wills,
based on the Everyday Decisions Project and a follow-up study specific to will-making.
Their final report, Supported Will-Making: A Socio-Legal Study of Experiences,
Values, and Potential in Supporting Testamentary Capacity, was published in 2019.64
1.81 We would also like to thank the Reverend Alexander McGregor, the Chief Legal
Adviser to the Archbishops’ Council and the General Synod of the Church of England,
and Matthew Chinery, General Counsel and Head of Legal Services of the
Representative Body of the Church in Wales, for their helpful thoughts on the topic of
advowsons.
1.82 We are thankful to officials from the Ministry of Justice, the Court of Protection Rules
Committee, and the Official Solicitor and Public Trustee and her office.
1.83 The Commissioners would like to record their thanks to the following members of staff
who worked on this Report: Elizabeth Welch (team lawyer); Thomas Nicholls (team
lawyer); Lauren Harris, Lauren Tagg, Esme Cairns, Sam Hussaini, and Leonie James
(who worked on the Report as research assistants at different stages); Matthew Jolley
(team head and Head of Legal); Spencer Clarke (team lawyer and interim joint team
head); and Colin Oakley (interim joint team head and subsequently team head).
2.1 In order to make a valid will, the testator must have testamentary capacity. A will
executed by a person who lacks testamentary capacity at that time1 is invalid. If a
person lacks capacity to make their own will, the Court of Protection can make a
statutory will on their behalf.
2.2 The effect of incapacity is therefore to deny the person the ability to exercise
testamentary freedom. However, requiring that a person has capacity is necessary to
safeguard them against abuse and exploitation. The test of capacity must therefore
strike a careful balance.
2.3 Whether a person has testamentary capacity might be raised prospectively or
retrospectively. Where a will is being prepared by a professional, they need to be
satisfied that the testator has capacity; therefore, they must consider the test of
capacity prospectively before preparing the will for execution.2 However, a will can
only be proved after the testator has died, at which time someone may challenge the
validity of the will on the grounds that the testator lacked capacity at the time the will
was executed; in this case, the testator’s capacity is considered retrospectively.
2.4 The issue of testamentary capacity is fundamental to the law governing wills. As Dr
Daniel Bedford and Dr Juliet Brook note:
The significance of testamentary capacity cannot be underestimated as many
testators make or amend their wills when they are experiencing cognitive decline in
later life.3
2.5 We understand that this period of cognitive decline is often referred to as the “twilight
period”.4 This term echoes the famous description of capacity by Lord Cranworth in
1857:
... 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.65
2.6 Although assessing a person’s capacity is a difficult task, our work has not revealed
issues with the fundamental approach to assessing capacity. The main legal issue is
that there are two tests of capacity that apply in the testamentary context: the common
law test, as originally outlined in Banks v Goodfellow, 66which applies to assessments
of whether someone does or did have capacity to make their own will; and the
statutory test in the Mental Capacity Act 2005 (the “MCA”), which the Court of
Protection uses when assessing whether it can make a statutory will on a person’s
behalf. The reason for the existing different approaches is historical; there is no logical
justification for two different approaches.
2.7 In the 2017 Consultation Paper, we had provisionally proposed to adopt the test of
capacity in the MCA for testamentary capacity. We continue to hold the view that
adopting the MCA test is the best way forward, and we recommend the MCA test is
adopted. The majority of consultees were supportive of this reform. It will unify the
approach to testamentary capacity in relation to the assessment of wills written by
testators and the jurisdiction of the Court of Protection in making statutory wills,
avoiding the possibility of different outcomes in the same case. A unified approach
might also be simpler to understand and apply by those responsible for assessing
capacity and allow for the approach to testamentary capacity to benefit in a consistent
way from developments in relation to capacity to make decisions more broadly.
2.8 We have given this issue careful consideration. As we explain below, we think that
adopting the MCA test could result in different results compared to the common law
test, in situations where the testator is on the margins of capacity: in some cases, a
testator who would have capacity under the common law test would not have capacity
under the MCA test, and vice versa. While we cannot therefore guarantee that every
case would be decided in the same way under the MCA as it would under the
common law, we nevertheless think that the balance of factors points towards
adopting the MCA. As we said in the Consultation Paper, adopting the MCA will
promote a consistent and cohesive approach.
2.9 We also recommend that there should be a statutory presumption of testamentary
capacity and that the rule in Parker v Felgate 67should be retained in relation to
capacity. We also recommend that detailed guidance on assessing testamentary
capacity should be outlined in the MCA Code of Practice,68 and that anyone preparing
a will in a professional capacity or for remuneration should be required to have regard
to it.
2.10 At the time of the Consultation Paper, we explained that there had been uncertainty as
to which test governs the assessment of testamentary capacity: the common law test
first outlined in the case of Banks v Goodfellow 69in 1870, or the test in the MCA. We
also explained the relevance of the UN Convention on the Rights of Persons with
Disabilities (“UNCRPD”).
2.11 In Banks v Goodfellow, Chief Justice Cockburn outlined the requirements of
testamentary capacity as follows:
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.70
2.12 The language used in Banks v Goodfellow reflects the age of the case, as well as its
facts (the testator suffered from delusions that he was being persecuted by a specific
man). However, the test has been adapted by the courts to reflect more modern
understandings of psychiatry and medicine. For example, in Key v Key, Mr Justice
Briggs (as he then was) found that bereavement caused the testator to have a severe
affective disorder, amounting to a mental disorder that deprived the testator of the
decision-making capacity necessary to satisfy the Banks test.71
2.13 The test is commonly divided into three or four limbs,72 in summary requiring that -
(1) the testator has the capacity to understand that they are making a will, and the
effect of their testamentary disposition;
(2) the testator has the capacity to understand the extent of their estate and
therefore the property that can be disposed of in their will;
(3) the testator has the capacity to understand those who have claims on their
estate and to appreciate those claims; and
(4) the testator’s understanding must not be impaired by, or their affections or
disposition influenced by, any disorder of the mind or delusion.
2.14 The MCA 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 certain decisions for themselves. It applies a single test of capacity to a broad
range of financial and welfare decisions, which may need to be made on behalf of a
person who temporarily or permanently lacks capacity to make those decisions for
themselves. It also outlines the principles and framework that govern how decisions
can be made for a person who lacks capacity, and it establishes the Court of
Protection as the adjudicator of assessments and decisions made under the MCA.
2.15 The MCA test for capacity is outlined in sections 1 to 3. First, capacity is (rebuttably)
presumed, in section 1(2). Section 2(1) then 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.
This assessment of whether the person’s incapacity is caused by an “impairment” or
“disturbance” of the mind is commonly known as the diagnostic test.
2.16 Section 3(1) outlines the circumstances in which a person is unable to make a
decision for themselves, providing a “functional test”:
For the purposes of section 2, a person is unable to make a decision for himself if he
is unable-
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the
decision, or
(d) to communicate his decision (whether by talking, using sign language or
any other means).
2.17 Section 3(4) states that relevant information to a decision includes the “reasonably
foreseeable consequences” of making a decision or failing to make a decision.
Section 3(2) provides that a person is not to be regarded as unable to understand the
information relevant to a decision if they can understand an explanation of the
information “given ... in a way that is appropriate to [their] circumstances”, and section
3(3) provides that because a person can only retain the relevant information for a
short time does not prevent them from being regarded as unable to make the
decision. Sections 1 and 2 outline additional principles that must be considered in
assessing a person’s capacity.
2.18 The correct sequence of the MCA test is to 1) consider the functional test (whether the
person is unable to make a decision for themselves), and then 2) consider the
diagnostic test (whether the person’s inability is because of an impairment of, or a
disturbance in the functioning of, their mind or brain).13 Therefore, in order to lack
13 See Consultation Paper, para 2.50, citing eg PC v City of York Council [2013] EWHC Civ 478, [2014] Fam
capacity under the MCA, the person’s inability to make a decision must be caused by
an impairment or disturbance in the functioning of their brain.
2.19 As we explained in the Consultation Paper, in Re Walker, Nicholas Strauss KC (sitting
as a deputy High Court Judge) suggested that there are three differences between the
Banks 73and MCA tests.
(1) Section 1(2) of the MCA provides for a presumption of capacity, whereas it is
initially on the propounder74 of a will to prove capacity under the common law
Banks 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) of the MCA 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 must only be
able to understand the immediate, not collateral, consequences of their will.75
2.20 The UNCRPD is relevant to considerations of the law governing testamentary
capacity.
2.21 The UNCRPD has been ratified by the United Kingdom but is not incorporated into
national law. Accordingly, (non)compliance is a matter of political rather than legal
consequences.76
2.22 Article 12 of the UNCRPD provides that: persons with disabilities should enjoy legal
capacity on an equal basis with others; states should help persons with disabilities to
access support in exercising their legal capacity; and measures relating to legal
capacity should respect the rights, will and preferences of persons with disabilities.
2.23 Article 12 and its requirements have been interpreted by the Committee on the Rights
of Persons with Disabilities in General Comment No 1. In General Comment No 1, the
Committee explained that legal and mental capacity are different, but that legal
capacity, in the sense of legal agency, is often denied to people on the basis of their
mental capacity. It expressed the view that a functional approach to capacity, such as
the approach taken in the MCA and Banks v Goodfellow 77tests, is flawed: it is
discriminatorily applied and results in the denial of core human rights.78
2.24 The UK must have regard to the General Comment but is not bound by it when
interpreting and implementing the UNCRPD.79
2.25 These high-level concerns with the approach to capacity as a whole in the law are not
ones that we can resolve in our project. However, we have kept in mind the UNCRPD
throughout our work, including by considering how changes to the law on
testamentary capacity relate to it. We have particularly considered the UNCRPD in
relation to statutory wills and supported will-making, in Chapters 3 and 4 below.
2.26 There was no doubt at the time of the Consultation Paper that the MCA test governs
assessments of capacity by the Court of Protection in determining whether the court
can make a statutory will for a person. But there was uncertainty as to whether the
MCA test also applied in relation to assessments by solicitors at the time of preparing
a will, or by the courts after the testator had died, about the testator’s capacity to make
their own will. 80While the case of Re Walker 81concluded that the Banks82 test
continues to apply, there remained some uncertainty among stakeholders, who had
expressed a desire for the issue to be conclusively settled.
2.27 In the Consultation Paper, we thought it was debatable whether the differences
between the two tests were material, noting that some stakeholders had told us they
saw little or no difference between the two tests. We also noted that the presumption
of capacity in the MCA and the operation of the evidential presumptions under the
common law may not result in different outcomes, given that testamentary capacity is
usually decided on the evidence. We further thought that the requirement that the
testator understand all the relevant information under section 3(1) of the MCA was a
general statement, whereas the limbs of the Banks test outline the information that is
specifically relevant to testamentary capacity.83
2.28 However, we did note a further difference, which arises due to the rule in Parker v
Felgate:84 if a testator gives instructions to a solicitor to make a will, under the
common law the testator is not required to be able to fully understand the will when it
is later being executed; whereas the MCA requires the person to have capacity at the
time the decision is made, which we interpret as the time when the will is executed.85
2.29 At the time of the Consultation Paper, we were unconvinced of any difference in
substance between the Banks and MCA tests. Nevertheless, we thought the risk that
different outcomes could be reached under the tests was undesirable. This possibility
is particularly unwelcome given that a different outcome could be reached by the
Court of Protection applying the MCA when assessing whether a statutory will can be
made for a person, compared with the common law test when assessing whether the
person has capacity to make their own will. We concluded that:
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.86
2.30 In the Consultation Paper, we concluded that whether the Banks or MCA test applies
should be conclusively settled.87
2.31 In our work leading to the Consultation Paper, stakeholders expressed opposing
views about the need for general reform to the test for capacity. Some thought the
Banks 88test was a succinct and effective statement of the fundamental requirements
of capacity in the context of making a will. As we noted, other jurisdictions continue to
apply tests developed from the Banks test. However, other stakeholders thought the
test was archaic and difficult for non-lawyers to understand, arguing that it would at
least benefit from being put into more modern terms.89 Some questioned whether the
Banks test reflects modern medical and psychiatric understandings, including the
range of factors that are now understood as potentially able to affect a person’s
testamentary capacity.90
2.32 We also explained in the Consultation Paper that there was some uncertainty over
whether the Banks test comprises three or four limbs. Specifically, it is unclear
whether 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” forms part of the
third limb or is a separate, fourth limb. The question is whether a testator’s delusions
are relevant only to the testator’s understanding of the claims on them (the three-
limbed interpretation) or are relevant to their understanding and decision-making more
generally (the four-limbed interpretation).91 The Court of Appeal followed the three-
limbed approach in Hawes v Burgess 92but the four-limbed approach in Sharp v
Adam.93
2.33 We expressed our view in the Consultation Paper that we were inclined to consider
the four-limbed version of the test as correct, and the better policy position. We also
noted that, in practice, the distinction does not seem to have caused significant
problems. Nevertheless, we thought reform should provide clarity.94
2.34 Finally, although case law has recognised that the focus of the Banks test is on the
testator’s capacity to understand, rather than their actual understanding, we thought
that it was another matter that could be made certain by reform.95
2.35 We provisionally proposed the adoption of the test for capacity in the MCA, with the
specific elements that a person is required to be able to understand to make a will,
drawn from Banks v Goodfellow,96 to be outlined in the MCA Code of Practice.97 We
thought this approach would have the advantages of making the law governing mental
capacity consistent and cohesive. It would address the issue that there is no logical
reason for there to be two different tests, and arguably make the approach to
testamentary capacity more modern. We thought that adopting the MCA test but
placing the Banks elements in the Code of Practice would “maintain the virtues of the
Banks v Goodfellow test while resolving or avoiding the technical issues that the
common law test has produced”.98
2.36 However, we additionally asked two open questions. First, we asked a question to test
support for placing the Banks v Goodfellow test on a statutory footing in the event that
consultees did not support a move to the MCA test. 99Secondly, we asked if a
statutory version of the test in Banks v Goodfellow should clarify that the test has four
limbs, such that delusions or disorder of the mind (or another cause of incapacity) is
not limited to the testator’s understanding of the claims on them; that the testator’s
capacity could be affected by factors other than delusions or a disorder of the mind;
and that the testator must have capacity to understand rather than actual
understanding.100
2.37 The majority of the consultees responding agreed with our provisional proposal to
adopt the MCA test with the specific elements of capacity necessary to make a will to
be outlined in the MCA Code of Practice.101
2.38 Many consultees who were in favour of the suggestion thought it would be beneficial
to have a single test to govern testamentary capacity, or for the test to be consistent
with the Court of Protection’s jurisdiction to make a statutory will. Some thought that
having a single test to assess capacity would be simpler, which would be particularly
desirable given the involvement of medical professionals who will be familiar with the
MCA test in assessments of testamentary capacity. Consultees also suggested that
the MCA test reflects a more modern understanding of capacity and would support
testators to exercise their capacity, and that having a unified test would promote
consistent development in line with other types of decision-making.
2.39 Consultees opposed to the proposal frequently argued in defence of the Banks v
Goodfellow test, on the basis that it is specific to the will-making context and is well
understood by legal practitioners and the courts. They suggested that we had
overstated concerns with the Banks test. In particular, some disagreed that the
language is archaic or difficult to understand, saying it had proved capable of
development in line with medical advances. Some also disagreed that the issue of
whether it was three- or four-limbed caused problems in practice. Others warned that
change would result in uncertainty and litigation.
2.40 Some consultees, including some agreeing with the proposal, thought that the MCA
framework - designed for lifetime decision-making - would be difficult to apply to
retrospective assessments of capacity.
2.41 Other consultees, whether or not agreeing with the proposal, thought that the
outcomes between the two tests might differ. In particular, several consultees said that
the requirements in section 3 of the MCA that the person be able to understand all
information relevant to the decision and the reasonably foreseeable consequences
would result in a higher threshold under the MCA test.
2.42 Just over half of the 96 consultees who responded expressed support for placing
Banks v Goodfellow on a statutory footing if the MCA test were not adopted.102
Reasons given included being able to put the Banks test in modern or appropriate
language, reflecting modern medical understanding, and being able to clarify both that
the Banks test continues to apply to assessments of testamentary capacity and that
the test has four limbs.
2.43 Those opposed argued that clarification of the test in statutory form is unnecessary, as
the current test is clear and understandable and there is no real uncertainty that the
Banks test applies and the number of limbs it has. They also argued that the test was
better left to the common law, which would allow for increased flexibility and
development over time. They also cautioned against the risk, in placing Banks on a
statutory footing, of introducing uncertainties and unintended changes.
2.44 We also asked an open question about whether specific aspects of the Banks test
should be clarified in a statutory version.
(1) A majority103 said that the statutory version should provide a four-limbed test of
capacity, so that the relevance of the testator’s delusions or disorder of the
mind (or other cause of capacity) is not confined to understanding the claims on
them.
(2) A majority104 thought the statutory version should provide that a testator’s
capacity may be affected by factors other than delusions or a disorder of the
mind.
(3) A majority105 thought that the statutory version should provide clarification that
the testator must have the capacity to understand, rather than actually
understand, the relevant aspects of a will.
2.45 Since the Consultation Paper, case law has provided greater clarity over some of the
uncertainties surrounding testamentary capacity that we had identified in it.
2.46 First, courts have consistently decided that the common law test in Banks applies to
assessments of testamentary capacity to assess the validity of an existing will. The
position is arguably clearer now than at the time of the Consultation Paper. There
have been 12 recent High Court decisions confirming that Banks applies.106 Theobald
on Wills states that it is now “established” that Banks is the test for testamentary
capacity.107 Williams on Wills similarly states that, in the light of the recent case law,
Banks applies.108
2.47 However, some uncertainty may remain. The recent decisions are all from the High
Court: there is still no authority on this issue from the Court of Appeal, 109and High
Court decisions do not bind other judges of the High Court. Debate as to which test
applies appears to continue.110
2.48 Recent case law provides some clarity over the structure of the Banks test. The courts
have nearly universally approached the test as having four limbs, with the reference to
disorders of the mind and delusions applying generally. In some cases, judges have
set out the test with four limbs,111 quoted the formulation of the test in Sharp v Adam,112
or have otherwise referred to the “fourth limb” while assuming that the reference to
disorders of the mind and delusions applies generally.113 We have found only one
case114 since the publication of the Consultation Paper which has supported the three-
limbed approach used in Hawes v Burgess.115
2.49 Recent case law has confirmed that a disorder of the mind or delusion does not need
to stem from a recognised medical condition under the Banks test, lending weight to
the conclusion that the Banks test is adaptable to modern medical understandings.
2.50 In Costa v Germain, 116the High Court considered Key v Key,117 in which the court held
that bereavement may impair testamentary capacity, even though bereavement is not
a disorder of the mind or a delusion. This is because bereavement can cause an
affective disorder and the “symptomatic effect” of bereavement can be akin to
depression.118 In Costa, Mr Justice Henderson (as he then was) adopted this
approach. He ruled that if the testator has a disorder of the mind or delusion which
prevents them understanding the elements required under Banks, even if the disorder
or delusion does not stem from a recognised medical condition, the testator will lack
testamentary capacity.119
2.51 Although Baker v Hewston 120did not develop the law, its analysis of the relationship
between Banks and the MCA tests merits consideration. Like Re Walker 121before it,
Baker v Hewston expressly compared the Banks and MCA tests in the testamentary
context. In Re Walker, Nicholas Strauss QC (sitting as a deputy High Court judge)
outlined the “clear differences” between the Banks and MCA tests, suggesting that
they will “not always” produce the same results. 122But in Baker v Hewston, Judge
Tindal (sitting in the High Court) gave a detailed explanation as to how the tests are
intentionally “aligned”.123 In his view, although not identical, the tests are “broadly
consistent” and can be interpreted to “accommodate” each other.124 To avoid
constructions which would produce opposite conclusions for the same person, Judge
Tindal thought the courts would interpret the MCA in the context of testamentary
capacity as aligned with the Banks test.125 Judge Tindal also disagreed with the
specific points of divergence between the Banks and MCA tests raised in Re
Walker.126
(1) He said that the common law presumption of capacity, which applies where the
will is duly executed and appears rational on its face, amounts to the same
position as the MCA’s presumption of capacity. Where the will is not rational on
its face, in his view the MCA presumption would be rebutted because of the
irrationality. He thought that under both tests, the propounder of the will would
only have the burden of proving capacity if, on the face of it, incapacity had
been established.127
(2) He thought that the MCA’s requirement to understand the “information relevant
to the decision”, assessed in an “issue-specific” way, would align with the
information necessary to understand under Banks.128
(3) He disagreed that under the MCA a testator would have to be able to
understand the “collateral” as opposed to only the “immediate” consequences.
In his view, “immediate” (under the common law) and “reasonably foreseeable”
(under the MCA) both place “practical limits” on the type of consequences the
testator must be able to envision.129
2.52 On this basis, the judge thought that the two tests could be reconciled, with the first
three limbs of the Banks test treated as the “relevant information” under section 3 of
the MCA (the functional test), and the fourth limb treated as section 2 (the diagnostic
test). 130In this way, whatever test applies, the other could be used as a “cross
check”.131
2.53 In 2021 in Local Authority v JB, the Supreme Court considered the application of the
test of capacity in the MCA. It outlined that section 2(1) contains the core test of
capacity in the MCA, with the other provisions in sections 2 and 3 supporting that test
by providing descriptions and explanations. 132The test requires the court to answer
two questions, in the following sequence.
(1) The first is whether the person is unable to make a decision for themselves in
relation to the matter. As part of this question, the court must identify the
“information relevant to the decision” under section 3(1)(a). The reasonably
foreseeable consequences of the decision are also relevant information under
section 3(4), and could extend to the consequences for others, depending on
the factual context of the case.
(2) The second question, asked where the person is unable to make a decision in
relation to the matter, is whether that inability is because of an impairment of
the mind or brain.133
2.54 We continue to think, as we did in the Consultation Paper, that reform is required.134
2.55 We also continue to support adopting the MCA test for testamentary capacity, a policy
with which the majority of consultees agreed. We think it is illogical to have two tests
to govern testamentary capacity, depending on whether the question is whether the
testator’s will is valid, or whether the Court of Protection has the jurisdiction to make a
statutory will for the testator. We think the application of different tests, and together
with that the possibility of different conclusions, in the same case depending on who is
conducting the test is problematic and should be addressed.
2.56 In recommending adopting the MCA, we acknowledge that it is possible that doing so
will modify the test for testamentary capacity.135 That is because we think that it is
possible that, for persons on the very margins of capacity, the result under the MCA
could be different than the result under the Banks v Goodfellow test. The differences
that we identify do not all point in one direction. In some respects, the MCA test could
require more of testators than the Banks test, resulting in testators who would have
capacity to make a will under Banks not having capacity under the MCA. In other
respects, the MCA test could require less of testators, resulting in testators who would
not have capacity under Banks being able to make a will if the MCA test applies.
Adopting the MCA test does not appear to mean that the standard for capacity will be
higher or lower - just slightly different.136
2.57 Nevertheless, we think the balance of arguments strongly points to adopting the MCA
test. We think that having uniformity in the tests applying to testamentary capacity will
make the law in this area simpler, coherent and more accessible. It will ensure that
developments in thinking about capacity will develop consistently across testamentary
and other types of capacity. We also think there are wider benefits to including will-
making within the scheme of the MCA as a whole, in relation to the presumption of
capacity 137and the support given to a person to help them exercise their capacity.138
2.58 A clear benefit of adopting the MCA test is that there would be a universal test for
testamentary capacity, to apply in all circumstances.
2.59 Conversely, retaining the Banks test would result in there continuing to be two tests
which govern testamentary capacity. Having such a twin approach is difficult to justify.
The Banks test would continue to apply to determine whether a person has capacity to
make a will. The test would be applied by a professional involved in drafting a will for a
testator or assessing their capacity, as well as by the Chancery Division, after the
testator has died, in determining whether their will was valid. But the MCA would
continue to apply to assessments by the Court of Protection as to whether it had the
power to make a statutory will on a person’s behalf. We explained this in the
Consultation Paper. 139As noted in Theobald on Wills:
The fact that the two tests are not identical raises the unappealing possibility either
that certain testators may be unable to be sure of making a valid will for themselves,
yet unable to enlist the assistance of the Court of Protection, or (less likely) that a
testator for whom the Court of Protection has made a statutory will could then validly
revoke it and make a fresh will.140
2.60 We agree that this possibility is unsatisfactory. However, we tend to agree that it is
unlikely to arise in practice, if Banks were retained. As noted by the Bar Council:
If the Court of Protection decides that an individual has no capacity to make the will,
and the Court of Protection then makes a statutory will, it cannot be challenged post-
death for lack of capacity. If the Court of Protection decides the individual has
capacity, the individual will, no doubt, make the will. Whether it is valid or not will be
capable of challenge post-death, but in practice the challenge will not succeed
unless new evidence emerges.
2.61 We also agree with Judge Tindal in Baker v Hewston that any divergence in results
can be avoided by interpreting the MCA in the statutory wills context as aligned with
the Banks test, 141with the Banks test putting “flesh on the bones” of the MCA.142
2.62 Nevertheless, we think that the necessity for the Chancery Division or the Court of
Protection to take these pragmatic steps to avoid a different outcome - despite the
law perhaps mandating it - is undesirable and difficult to justify. We think the law
should have a single, coherent approach to the question of testamentary capacity,
regardless of who is answering it. That is a more modern approach to what is, or
should be, the same question being answered in the same way.
2.63 A universal test may also make the law clearer for people who are tasked with
assessing capacity in a variety of contexts. Medical professionals involved in
assessing testamentary capacity, who may be familiar with and apply the MCA test in
other circumstances (such as regarding capacity to make medical decisions), might
benefit from the simplicity of a single test.
2.64 In the Consultation Paper, we said that whether the differences between the MCA and
Banks test were material could be questioned.143 Some consultees disagreed: they
argued that, in practice, the MCA test and the Banks test could have different
outcomes, meaning that adopting the MCA test would be to change the law.
2.65 The main focus of consultees’ concerns was that subsections (1) and/or (4) of section
3 of the MCA might require more in the way of understanding than the Banks test.
Consultees also raised concerns about the apparently prospective nature of the MCA
test and the MCA as a whole applying in the testamentary context, where determining
the substantial validity of a will requires a retrospective assessment of the testator’s
capacity.
2.66 We have also identified two further differences between the tests. First, the MCA test
has a diagnostic threshold which applies throughout the assessment, whereas the
Banks test only has a diagnostic threshold in relation to the fourth limb. 144Second, the
MCA test focuses entirely on whether a mental impairment affects the person’s
understanding, whereas the Banks test also involves an assessment as to whether a
mental impairment affects the person’s decision.
2.67 We discuss each of these potential points of divergence below.
2.68 One concern in adopting the MCA test focusses on section 3(1) of the MCA, which
requires the person to be able to “understand the information relevant to the decision”.
The suggestion is that this imposes a requirement to be able to understand all
relevant information, or in the wills context, that it would require understanding about
matters other than those set out in the four limbs of the Banks test.
2.69 We are unpersuaded by this argument. Essentially, we agree with the analysis in
Baker v Hewston on this point: despite what is said in Re Walker,145 the MCA does not
impose any requirement to understand “all relevant information”, 146or that the
information which is relevant goes beyond the information required under the Banks
test.
2.70 Another concern is that the requirement under section 3(1) of the MCA that the person
must be able to “retain” the information relevant to the decision is more stringent than
Banks, in terms of what is required of the testator’s memory. However, we also
disagree that there is a difference between the two tests in this respect. Neither is a
test of memory. As the judge noted in Baker v Hewston, section 3(3) of the MCA only
requires the person to be able to retain the information for a short period in order to
have capacity.147 It is also clear from Simon v Byford that Banks is not a memory test.148
2.71 Another concern with adopting the MCA as the test of testamentary capacity is that
the requirement under section 3(4) of the MCA - that a person understands the
reasonably foreseeable consequences of “deciding one way or another, or failing to
make the decision” - could, in some circumstances, require the testator to be able to
understand matters they would not be required to under the Banks test. We tend to
agree that there is a risk that, in some situations, the MCA test could require more of
testators’ ability to understand the consequences of their testamentary dispositions.
2.72 The argument is that the MCA test requires an ability to understand the collateral
consequences of a decision, but the Banks test only requires an understanding of the
immediate consequences. The type of consequence was an issue in Simon v
Byford: 149applying the Banks test, the testator was found to have capacity despite not
being able to understand that the collateral consequence of dividing shares in a
company amongst her children, together with the existing shareholdings, was to
create a risk of deadlock in voting. The Court of Appeal said that the authorities did
not require the testator to understand the collateral consequences, and moreover it
would not be “desirable that the law should go that far”. 150In particular, the Court did
not think that the Banks test required the testator to “understand or remember the
extent of anyone else’s property”.151
2.73 Theobald on Wills suggests that there is a substantive difference between the MCA
and the Banks tests, in particular due to the requirement under section 3(4) of the
MCA. 152Referring to our provisional proposal to adopt the MCA test, it suggests it
would “make the substantive test more demanding, and potentially invalidate more
wills, albeit that there would be a more robust presumption of capacity”.153
2.74 This potential point of divergence - first discussed in Re Walker154 - has not been
specifically decided in the courts, although judges have recently considered the point.
(1) In James v James, Judge Paul Matthews (sitting as a Judge of the High Court)
agreed with the comments in Re Walker155 that the MCA requires a higher
degree of understanding than Banks, due to both subsections 3(1) and 3(4) of
the MCA.156
(2) As noted above, Judge Tindal in Baker v Hewston thought that Re Walker157
overstated the differences between the MCA and Banks tests,158 which he
instead thought were “broadly consistent”. 159In relation to section 3(4) of the
MCA, the judge thought that although the MCA test generally requires an
understanding of the collateral consequences of the decision, in the context of a
will this would be equivalent to understanding the direct consequences,
because the unilateral nature of a will means that the testator would not be
required to understand the consequences for others.160
2.75 Accordingly, we still think it is difficult to say with any certainty whether section 3(4) of
the MCA would require something different of testators than the Banks test would do.
But we cannot discount the possibility that it might.
2.76 We are not wholly persuaded by the reasoning in Baker v Hewston on this point. 161In
suggesting that under the MCA a testator would not have to understand the
consequences of their testamentary decisions on others - that even understanding
the immediate consequences on others would not be necessary - the judge in part
relied on the fact that a person is free to make an unfair or cruel will. But this is not the
whole picture: a testator is only free to make an unfair or cruel will if they have the
capacity to make a reasonable and rational one.162 However, we do agree that a will is
unilateral, so capacity in the testamentary context should not involve the same
consideration of others that capacity in other contexts necessarily does. The MCA
allows for these differences, by approaching capacity in a decision-specific way.
2.77 If the MCA test were applied strictly to the circumstances in Simon v Byford, we think
it possible that the testator might not have had capacity to make her will, because she
did not have the capacity to understand the collateral consequence of her decision.163
STEP, in a recent document on capacity, 164believes that adopting the MCA test would
require testators to understand the collateral consequences of the terms of their will,
possibly resulting in the number of probate disputes increasing. It could also be the
case, as Professor Rosie Harding suggested in her consultation response, that an
inability to understand tax consequences or complex social norms might also result in
a person lacking capacity under the MCA but not under the Banks test. And, as
mooted by some consultees,165 the MCA’s requirement that a person be able to
understand the reasonably foreseeable consequences of “failing to make a
decision” 166might require a testator to understand how their estate would be
distributed on intestacy, which might not clearly be required or might not be required
at all under the Banks test.167
2.78 Despite this potential change, we nevertheless think the MCA should be adopted. It is
worth noting that some consultees who thought that section 3(4) could require more
on the part of testators were in favour of imposing that stricter requirement, seeing it
as a positive safeguard.
2.79 Another point of distinction, and a reason given by some consultees not to adopt the
MCA, is that the framework of the MCA is unsuitable for a retrospective assessment of
a person’s capacity.
2.80 Certainly, on their face, many of the provisions of the MCA appear most apt in
supporting a person to make decisions, or enabling substituted decision-making for a
person who lacks capacity, at the time those decisions are taken. A clear example is
the principle in the MCA that “a person is not to be treated as unable to make a
decision unless all practicable steps to help him to do so have been taken without
success”.168
2.81 But retrospective analysis of whether a person had capacity to make a decision
governed by the MCA, for example, at the time they granted a Lasting Power of
Attorney (“LPA”) or made an advance decision to refuse medical treatment, has been
the subject of court cases.169 In a retrospective assessment, consideration of (for
example) the actual support the testator had, rather than the support that they could or
should have been given, would seem to be the most sensible way of applying the
MCA test in this circumstance. Indeed, Government has consulted on making this
point clearer in the MCA Code of Practice: 170in respect of retrospective assessments,
the revised draft Code (which has not yet been adopted) notes that it is “clearly not
now possible to seek to support the person to make the decision”.171
2.82 Accordingly, we do not consider concerns about the retrospective nature of the MCA a
compelling reason for not adopting it in the context of testamentary capacity. We also
do not consider that it will cause any problems in practice in terms of the MCA
applying to testamentary capacity, whether the testator’s capacity is being assessed
contemporaneously with making the will, or whether the court is retrospectively
assessing whether the testator had capacity at the time they made their will.
2.83 Under the Banks test, a testator will lack testamentary capacity if, for any reason, they
lack the capacity to understand the elements required under any of the first three
limbs: that is, (1) the nature of a will and its effects; (2) the extent of their estate; and
(3) those who may have claims on their estate. While the fact that the testator was
suffering from a delusion or a disorder of the mind (however phrased) is certainly
relevant to an assessment as to whether the testator did have capacity to understand
those elements, it is not strictly necessary under the Banks test to show that a
delusion or disorder of the mind caused any inability to understand.172
2.84 However, in relation to the fourth limb - the assessment of the testator’s overall
decision-making, including their affection and mood - in order to lack testamentary
capacity, Banks requires that any impairment or “perversion” of their sense of right is
caused by delusions or a disorder of the mind. This “diagnostic threshold” means that
something which influences the testator’s overall testamentary disposition - such as a
decision not to make provision for a son based on a false belief that the son was an
ungrateful spendthrift - would only result in the testator lacking testamentary capacity
if that influence on the testator’s decision was morbid or pathological in origin.173
2.85 Conversely, the MCA test generally has a diagnostic threshold: according to section
2(1), for any inability to understand to result in the person lacking legal capacity, that
inability must be caused by a mental impairment. 174The MCA test is therefore
different to the Banks test, where only the fourth limb of the Banks test requires any
inability to understand to be caused by something of morbid origin.
2.86 Accordingly, adopting the MCA will potentially cause a change. Dr Juliet Brook175
questioned the adequacy of the MCA test in general, noting that under it there are
“situations in which the court has had to exercise its inherent jurisdiction to provide
safeguards to vulnerable people who meet the capacity requirements under the MCA”.
She thought that our proposals in relation to undue influence would provide some
protection, “but there is still the potential of a lacuna” because of the MCA’s
requirement that the person’s mental impairment causes their inability to make a
decision. She disagreed that undue influence was the only example, naming pain and
fatigue as others.
2.87 The MCA Code of Practice makes it clear that pain or fatigue can amount to “an
impairment of, or a disturbance in the functioning of, the mind or brain” under the
MCA. 176Indeed, the only other reason we can envision as affecting a person’s
capacity to understand the first three limbs of the Banks test, other than something
morbid in origin, is influence.
2.88 Whether influence can be such that it undermines a person’s capacity under the MCA
is not entirely clear. However, in some cases it has, and the Court of Protection has
considered influence in assessing whether a person has capacity to make a decision,
with coercive pressure making it such that a person could lack capacity.177
2.89 In the testamentary context, influence is addressed by the doctrine of testamentary
undue influence. Under the doctrine, for influence to amount to testamentary undue
influence, there must be coercion.178 However, what amounts to coercion depends on
the testator, and their vulnerability. As we explain in Chapter 9, how much pressure is
necessary to overbear a person’s will depends on their physical and mental
strength. 179Even if pain or fatigue were insufficient to result in a person lacking
capacity, we think they would be relevant considerations in assessing whether
someone has been subject to influence which, in their case, was undue such that it
amounted to coercion.
2.90 That is to say that, even with the MCA test applying to govern testamentary capacity,
the roles played by the requirement for testamentary capacity and the doctrine of
testamentary undue influence will be the same as under the current law. Capacity will
assess what a testator was capable of understanding and making a judgement about
the disposition of their estate; and undue influence will assess whether the testator’s
judgement, rather than someone else’s, determined what disposition the testator
made of their estate. To enhance protection of testators, particularly vulnerable
testators, we recommend in Chapter 9 that the new Wills Act should include a
provision which enables the court to infer testamentary undue influence if there is
evidence which provides reasonable grounds to suspect it.
2.91 A final difference between the two tests of capacity arises in relation to the decision
the person makes. Arguably, the MCA focuses exclusively on the person’s process in
making a decision but does not consider the decision the person makes; the Banks
test, however, does. It therefore might be that testators who have personality
disorders which affect their decision-making would have capacity under the MCA but
they would lack capacity under Banks. 180The same might apply where a person’s
dementia causes a change in their feelings towards their family and friends.
2.92 In her consultation response, Dr Juliet Brook noted that the fourth limb of the Banks
test considers whether the testator’s impairment has altered the disposal of their
property, not their ability to understand. She explained:
Crucial differences [between the Banks and MCA tests] such as this would have
significant bearing on cases such as Sharp v Adam in which the testator had
cognition (and therefore presumably capacity under the MCA test) but the cognitive
impairment was such that he changed the terms of his will.
In Sharp v Adam, the Court of Appeal upheld the deputy judge’s decision to set aside
the will for lack of capacity. In analysing the deputy judge’s decision, the Court
determined that the findings of fact were that the testator had capacity to understand
the first three limbs under the Banks test, but that leaving his daughters nothing was
irrational. As the Court said, “the question did not relate exclusively to cognitive
powers”,181 upholding the trial judge’s finding that the testator’s affection for his
daughters had been poisoned.182
2.93 A recent case also considered this fourth element of the Banks test. The focus in
Leonard v Leonard was on whether the testator’s disorder of the mind prevented him
from making a rational and fair will. The court concluded that the testator’s dementia
resulted in him making a will which left the future of one of his sons in an uncertain
state, which he would not otherwise have done.183
2.94 This point of difference in the tests was echoed in an article by Dr Daniel Bedford and
Dr Juliet Brook, where they said the Banks test can better assess the “more complex
aspects of autonomy, such as the authenticity of the decision, and the testator’s
emotional competence” than the MCA test.184 On the point of emotional competence,
they explained:
The Banks test envisages a positive role for emotions in the decision-making
process, as an individual must be able to exercise their “natural affections”.
Furthermore, the recognition, throughout Banks, that certain types of relationships
are expected to result in particular feelings reflects the more objective approach. In
contrast, the MCA’s focus on the intellectual processing of information excludes any
recognition of non-cognitive elements that are equally important for capacity. If the
ideal decision-maker is presented as someone who is able to set aside their
emotions to reach a logical conclusion, then emotions become a barrier to rational
decision-making. This “cognitive bias in the functional test” has been described as
“deeply problematic”, as it suggests that logical, intellectual processing of
information is the ideal of rational decision-making.185
2.95 It appears to be the case that, under the MCA, a mental disorder which influences the
person into making a particular decision, but which does not undermine their ability to
understand the relevant information, does not generally result in a finding of
incapacity. The only provision under the MCA in which the person’s decision itself
could be assessed is under section 3(1)(c), which provides that a person is unable to
make a decision if they are unable to “use or weigh” the relevant information in making
their decision. The article by Dr Daniel Bedford and Dr Juliet Brook noted one case
where the person’s inability to understand emotional consequences contributed to a
finding of incapacity under the MCA. 186However, the courts’ approach to the general
interpretation of “use or weigh” by the courts does not seem entirely consistent. 187For
example, the Court of Protection recently concluded that the requirement to be able to
“use or weigh” the relevant information does not prevent a person from having
capacity where their mental disorder influences the weight they give to elements of the
relevant information. That influence could be a part of the person applying their own
values to the decision. 188This interpretation of “use or weigh” might mean that a
personality disorder, on its own, would not result in a person lacking capacity, if the
only consequence of it is how the person weighs the information or the value they
attribute to it, rather than their ability to understand it.189
2.96 This issue might well arise in the wills context: decision-making in relation to wills
frequently involves the testator weighing, and perhaps even ranking, their affections,
sense of obligation, and values, in relation to various people and causes. However,
the MCA’s approach might be arguably more supportive of testamentary capacity than
the Banks test: it might be seen as ensuring that the personal values of people with
mental disabilities can influence their decisions, just as the personal values of people
without mental disabilities can influence their decisions.
2.97 As we explained in the Consultation Paper, even when the MCA applies to govern the
test of capacity for any specific decision, the pre-existing common law test may still be
relevant. The case law can provide useful guidance on the considerations relevant to
assessing capacity to make the specific decision, such as the relevant information.
Accordingly, although under our recommendations the MCA test will govern, we think
that the rich case law on the Banks test will continue to be relevant to assessing
testamentary capacity.190
2.98 As we proposed in the Consultation Paper, we think that the matters covered in the
four limbs of the Banks test should be outlined in the MCA Code of Practice to provide
detail of the relevant information that is necessary for the person to be able to
understand in the testamentary context in order to have capacity. We also think that
the Code of Practice should explain and direct readers to the Banks case law on
testamentary capacity, so that the rich case law in this area can continue to provide
guidance on the assessment of testamentary capacity in practice.
2.99 The MCA Code of Practice provides useful guidance to those tasked with assessing
capacity. However, it, and the pre-existing common law, cannot alter the law under the
MCA 2005. As the Supreme Court recently emphasised, section 2(1) contains the
core test of capacity in the MCA.191 The core test of testamentary capacity will
therefore be that the testator lacks capacity to make a will “if at the material time he is
unable to make a decision for himself in relation to [making the will] because of an
impairment of, or a disturbance in the functioning of, the mind or brain”. Accordingly,
including the elements of the Banks test in the MCA Code of Practice will do nothing
to ameliorate the potential differences between the Banks and MCA tests that we
identified above.
2.100 Nevertheless, we think that including the matters covered by the Banks limbs and
case law in the MCA Code of Practice will provide useful guidance to those assessing
capacity by identifying “the information relevant to the decision”, under section 3(1) of
the MCA for the purpose of assessing whether or not the testator is unable to make a
decision under section 2(1).
2.101 The matters covered by the first three limbs of the Banks can, and should, be
characterised as information relevant to the decision to make or alter a will within the
MCA Code of Practice. They identify things the testator must be able to understand:
the nature of making a will and its effects, the extent of their property, and those who
have claims on them and the nature of their claims.
2.102 We think it is also worthwhile for the MCA Code of Practice to explain the subject-
matter of the fourth limb of the Banks test as also potentially being relevant. The fourth
limb is about whether a disorder of the mind or delusion acts to change the testator’s
affections or the testamentary decision that they ultimately make. While generally an
assessment along these lines will not take place under section 2(1) of the MCA 2005,
in some cases, a delusion might be interpreted as causing an inability to understand
the information necessary to make a decision, such as the claims of those the testator
might benefit under his will.192 Accordingly, a disorder or delusion that would be
covered by the fourth limb may continue to be relevant.
2.103 We recommend that the test of capacity in the Mental Capacity Act 2005 should
apply to testamentary capacity.
2.104 We recommend that the MCA Code of Practice should reference and explain the
elements of the Banks v Goodfellow test in its guidance on testamentary capacity.
2.105 The draft Bill for a new Wills Act enacts Recommendation 1 in two ways: in clause 2,
by requiring testators to have capacity at the time that they make their will; and in
clause 23(3), by providing that references in the Bill to persons having, or lacking,
capacity are to be read in accordance with the MCA.193
2.106 The Bill does not enact the second part of this recommendation, that the MCA Code of
Practice should refer to and explain the four limbs of the Banks v Goodfellow 194test as
the information that is relevant to the decision to make a will. Under section 42 of the
MCA, the Lord Chancellor is already required to prepare and issue codes of practice
to provide guidance for persons assessing whether a person has capacity in relation
to any matter. Accordingly, what the MCA Code of Practice provides is a matter for the
Lord Chancellor. 195Nevertheless, we recommend that the Code should be updated to
include information on testamentary capacity, and as part of that, an explanation of
the four limbs of the Banks test as the relevant information necessary to be able to
understand in order to make a will.
2.107 In the Consultation Paper, we considered the burden of proof in relation to
testamentary capacity, governed by the common law, and the presumption of capacity
in the MCA. 196We explained in the Consultation Paper that our provisional proposal to
adopt the MCA test would have the consequence that the MCA’s presumption of
capacity in section 1(2) would apply in the context of wills. However, we separately
considered whether, if the Banks test were retained, a presumption of capacity should
be introduced.197
2.108 Even if the Banks test were retained, we thought that a presumption would draw
attention to the functional nature of the analysis, that is, to any effects of a person’s
disability or impairment rather than simply the fact of a person’s disability or
impairment. 198We therefore provisionally proposed that a statutory version of the
Banks v Goodfellow test should be accompanied by a statutory presumption of
capacity.199
2.109 A substantial majority of the consultees responding agreed with this provisional
proposal. 200They thought that it would provide clarity in relation to who bears the
burden of proof, better align this area with the MCA, empower testators and/or
enhance compliance with the UNCRPD, protect testamentary freedom, and/or prevent
unnecessary challenges to wills.
2.110 However, some consultees disagreed. The Chancery Bar Association thought that a
statutory presumption would “risk fettering the court’s powers in cases where evidence
is in short supply”. A few consultees - including Martyn Frost,201 Stephen Lawson202
and Professor Robin Jacoby, responding together - were concerned that a
presumption of capacity would be contrary to, or undermine, the duty on those drafting
wills to ensure a testator has capacity.203
2.111 As we recommend in Recommendation 1 above that the MCA test is adopted to
govern testamentary capacity, the presumption in the MCA will also apply to testators.
2.112 We do not think that the adoption of a statutory presumption of capacity will change
the necessary analysis by courts in most contentious cases. The current civil standard
of proof is “on the balance of probabilities”. 204As noted in Sharp v Adam, “cases are
only decided on the burden of proof if, exceptionally, the court is unable to reach an
evaluative decision taken as a whole”.205 This was recently emphasised by Mr Justice
Fancourt in Goss-Custard v Templeman, who explained that the modern approach is
to assess the totality of the evidence. 206This also is the approach under the MCA,
where, in retrospective assessments, the statutory presumption does not appear to
play a pivotal role: in a jointly authored article, Dr Daniel Bedford and Dr Juliet Brook
argue that the MCA case law shows that the presumption of capacity does not clearly
apply in retrospective assessments.207
2.113 We tend to agree with Judge Tindal in Baker v Hewston that the presumption of
capacity will operate very similarly to the current burden of proof in relation to
testamentary capacity under the common law. Under the common law, the
propounder of the will bears the burden of proving capacity. However, if they
demonstrate that the will is formally valid and looks rational, an evidential presumption
of capacity arises. Only if sufficient evidence is raised to bring the testator’s capacity
into doubt does the propounder have to prove capacity. We agree that a will which is
not rational on its face would rebut the presumption of capacity in the MCA, amounting
to the same position under the common law (where the presumption would not
apply).208
2.114 However, a presumption of capacity should not weaken the duty on solicitors and
those preparing wills to ensure that the testator has capacity.209 We do not think that a
presumption of capacity would necessarily have that effect. We note that this point
might be made clearer in the MCA Code of Practice: Government has consulted on
updating the Code, updates which (among other things) make more express the need
to assess capacity if doubts about capacity exist. 210The draft revised MCA Code of
Practice expressly states:
Assuming capacity should not be used as a reason for not assessing capacity in
relation to a decision. There should always be a proper assessment where there are
doubts about a person’s capacity to make a decision.211
2.115 As we discuss below, we also recommend that the MCA Code of Practice, directed at
anyone preparing a will - or assessing capacity - in a professional role or for
remuneration, should provide detailed guidance on capacity and, in particular, on the
requirement to assess capacity carefully when any doubt may arise.
2.116 We recommend that the statutory presumption of capacity in the Mental Capacity
Act 2005 should apply in the testamentary context.
2.117 This recommendation is enacted in the draft Bill by clause 23(3), by providing that
references to a person having or lacking capacity are to be read in accordance with
the MCA. As a consequence, the test for capacity in sections 2 and 3 of the MCA, and
the presumption of capacity, together with the other principles relating to capacity, in
section 1 of the MCA, will apply to will-making.
2.118 Generally, a person must have testamentary capacity at the time they execute their
will. However, there is an exception to that requirement, known as the rule in Parker v
Felgate.212 The exception applies where a person has lost testamentary capacity
between the time when they gave instructions for their will and when they executed
their will. The rule allows their will to be valid if the testator met a lower threshold for
capacity at the time they executed their will.
2.119 The modern statement of rule was set out by Lord Justice Moore-Bick in the Court of
Appeal in Perrins v Holland. If the testator loses capacity after giving instructions, they
are nevertheless able to make a valid will if the following points are satisfied:
(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.213
2.120 In the Consultation Paper, we outlined some of the concerns that stakeholders had
expressed that the rule is unfair or unprincipled. For example, Penelope Reed KC
argued that the rule deprives the testator of the right to ensure that their will carries
out their instructions and is discordant with the requirement that the testator have
knowledge and approval of the contents of the will.214
2.121 Despite these concerns, we provisionally proposed that the rule should be retained.215
As we explained in the Consultation Paper, we were more persuaded by the
arguments that the rule usefully prevents a person’s testamentary intentions from
being defeated, particularly in cases where the testator has given consistent
instructions over the course of several years, or where the testator loses capacity
quickly. It is a useful tool to address a problem that, in the context of an ageing
population, might become more prevalent.216
2.122 A very substantial majority of the consultees who responded agreed with this
provisional proposal. 217Although in some cases emphasising that the rule should be
used only exceptionally, many consultees supported retaining the rule in Parker v
Felgate on the basis that it supports testamentary freedom by allowing the testator’s
wishes to govern the disposal of their estate, or that it generally promotes fairness.
For example, the Chancery Bar Association acknowledged the practical difficulty that
the testator could not check the will at the time of execution but thought that the
advantages outweighed that drawback. Other consultees in favour highlighted its
practical use. A couple of consultees noted that it was preferable to requiring a
statutory will to be obtained where a testator loses capacity after giving instructions for
their will; indeed, some noted that a statutory will made in the circumstances where
the testator had given instructions for a will would probably reflect those instructions
and so be the same as a will that was valid under the Parker v Felgate rule.
2.123 Five consultees were specifically in favour of codification of the rule.
2.124 Professor Roger Kerridge, 218however, disagreed. He thought that Perrins v Holland219
was unsatisfactory because it validated a will when a beneficiary played a part in its
making. Mishcon de Reya LLP 220thought that it was not justifiable to assume that the
original instructions would reflect the testator’s wishes: the testator would not have the
benefit of making amendments based on advice and would not be able to check that
the will carried out their instructions.
2.125 We think that the rule in Parker v Felgate should be retained. It provides a practical
solution to a problem and does so in a way that avoids the cost and delay of obtaining
a statutory will. While we agree that the testator is deprived of the opportunity to check
that the will reflects their instructions, the rule requires that the will does give effect to
their instructions as a matter of fact.221 Although the testator is deprived of the
opportunity to change their minds and so their instructions, overall, we think that the
rule strikes the right balance between protecting testamentary freedom and providing
safeguards.
2.126 We think it is necessary to retain the rule in Parker v Felgate even though we are also
recommending, in Recommendation 12 in Chapter 6, that a dispensing power should
be introduced. This is because they do different things and are meant to address
different problems: the rule in Parker v Felgate addresses a loss of capacity in specific
circumstances, whereas a dispensing power addresses a failure to comply with the
formality requirements in a broad range of circumstances. Arguably a dispensing
power could achieve the same result as the rule in Parker v Felgate: if the testator’s
instructions were a record of the testator’s final or settled intentions, they could be
admitted as a will by the court through the application of the dispensing power.222 It
would, however, be a confusing and complex way of achieving the result provided by
the rule in Parker v Felgate. The entire instructions, noted by the solicitor or will writer,
may go beyond noting the testator’s testamentary intentions and record, for example,
observations about the testator’s capacity or reasons the testator gave for their
decisions, the latter usually expressed in a letter of wishes. If the instructions were not
written in the form and language which make dispositions legally effective,
interpretation and rectification might be necessary for those dispositions to have the
legal effect intended. However, if the rule in Parker v Felgate is retained, then the final
will, as prepared by the solicitor or will writer on the testator’s instructions and
executed by the testator with the understanding that they were executing a will for
which they had given instructions, could instead be accepted as valid.
2.127 Accordingly, we think that the rule in Parker v Felgate should be retained as an
exception to the general rule about when the testator must have capacity.
2.128 We recommend that the rule in Parker v Felgate should be retained with respect to
capacity.
2.129 Because we recommend that MCA test is adopted for testamentary capacity, we have
codified the rule in Parker v Felgate in the draft Bill. It is necessary to codify the rule to
prevent it from being abolished by the adoption of the MCA test. As explained by Lord
Justice Peter Gibson in Hoff v Atherton, capacity is necessary for any “juristic act”.223
In the context of making a will, the juristic act is bringing a valid will into effect: the
execution of the will. Parker v Felgate is, in our view, an exception to this general rule.
2.130 Similarly, under the MCA, the person must have capacity for any decision “at the
material time”. 224In relation to wills, we think the “material time” can only sensibly be
the time of the juristic act: the time of execution of the will. Accordingly, we do not
think that Parker v Felgate would survive as an exception to this unless the rule were
placed on a statutory footing.
2.131 Even if it were the case that the moment of giving instructions was interpreted to be
the “material time” for capacity under the MCA, we do not think this would be
satisfactory. As we have explained, Parker v Felgate is an exception with specific
requirements. It applies only where certain prerequisites are established, including
that at the time of execution of the will, the testator was capable of understanding that
they were executing a will for which they had given instructions: in other words, the
threshold for capacity is lowered but not removed at the later execution stage. We
struggle to see how these prerequisites could continue to apply under the MCA.
2.132 Accordingly, the rule in Parker v Felgate has been expressly codified in the draft Bill.
In codifying the rule, the Bill ensures that the existing case law on the rule will
continue to be relevant. Because the rule in Parker v Felgate is also an exception to
the general requirement of knowledge and approval (as we discuss in Chapter 9
below), and because we are also placing the requirement for knowledge and approval
on a statutory footing, the rule in Parker v Felgate has been split into two in the Bill.
The exception to capacity under the rule in Parker v Felgate is in clause 2(1)(b) and
(2); and, as we explain in Chapter 9 below, the exception to knowledge and approval
is in clause 4(1)(b) and (2).
2.133 Generally speaking, in order for a person drafting a will to accept instructions from a
testator, they must be satisfied that the testator has capacity to engage them.225
However, it is not necessary, or worthwhile, for a solicitor or will writer to conduct a
detailed assessment of capacity in cases where there is no doubt about the testator’s
capacity.
2.134 In what circumstances, and by whom, a testator’s capacity should be assessed are
addressed by what is known as the “Golden Rule”. The Golden Rule was explained by
Mr Justice Templeman (as he then was) in Re Simpson:
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 understanding of the testator, and records and preserves his examination and
finding.226
2.135 However, it is not necessary for the medical practitioner to witness the will. As noted in
Key v Key, in substance the Golden Rule advises solicitors to arrange for a medical
practitioner to assess the testator’s capacity and to make a record of their examination
and conclusion.227
2.136 The Golden Rule is a rule of best practice, not law.228 The fact that the Golden Rule
has not been followed does not necessarily mean that the will is invalid. Conversely,
the fact that it was followed does not guarantee the will’s validity. 229However,
evidence from the solicitor who drafted the testator’s will, and from a medical
practitioner in cases where one did assess the testator’s capacity, often play an
important role in any later challenges to the will’s validity.
2.137 In the Consultation Paper, we explained that we thought the Golden Rule was
inadequate to answer the question of when and by whom testamentary capacity
should be assessed. It assumes capacity is best assessed by a lawyer or a doctor;
however, we noted that in practice social workers, mental health nurses, or those
skilled in communicating with people with particular disabilities (such as deaf-
blindness) might be better placed to give an opinion on capacity. We considered that
requiring an assessment by a doctor might be inadequate, as well as inappropriate,
“insofar as it treats a person’s disability or condition as a medical issue instead of a
communication issue”. We also thought that the suggestion that “aged” testators must
be assessed could potentially be seen as unfair, as some older testators might have
better capacity than younger ones, and that such an artificial threshold could
understandably be viewed as unjustified. 230In our view, the Golden Rule was too
simple to provide complete answers to fundamental questions, lacking the nuance
necessary to offer guidance on the diverse range of situations that arise.231
2.138 We therefore provisionally proposed that a code of practice should provide guidance
on when, by whom and how a testator’s capacity should be assessed. If the MCA
were adopted for the testamentary context, we suggested that the power to issue the
code should be in the MCA.232 We further provisionally proposed the code should
apply to any person acting in a professional capacity in preparing a will or assessing
capacity,233 although it could also offer guidance to others. We were not in favour of
introducing a statutory duty of care. Like the current Golden Rule, we noted that the
fact that the code was followed would provide evidence of capacity but would not be
determinative of the issue.234
2.139 We generally invited consultees’ views as to the content of a code of practice.235
However, we also outlined our own views on what it should include.
2.140 In the majority of cases there will be no question about the testator’s capacity. To help
to identify where the question of capacity should be raised, we thought that guidance
in a code of practice could set out indicators or warning signs. These warning signs
could be based on the specific legal test of testamentary capacity, and could refer to
the circumstances in which the will was being made, the testator’s medical history (if
known) and their personal demeanour.236
2.141 We noted that the case law showed a diversity of views about who is best placed to
assess testamentary capacity. Courts have offered conflicting views about the merits
of an assessment by a solicitor at the time the will was made, particularly an
experienced solicitor, versus a retrospective assessment based on medical evidence
when a will is challenged. 237We explained that we had heard that doctors might be
uncomfortable or unwilling to assess testamentary capacity, and where they do not
know the patient well, they might not be best placed to do so. We thought that
experience in assessing testamentary capacity and an ongoing relationship with the
testator might be better markers of an ability to assess capacity. 238We therefore
concluded that where capacity was in doubt, a code of practice should encourage the
lawyer to consider who is best placed to assess capacity, and how to do so: whether
the lawyer themselves could be confident of doing so; or, if not, where it would be
appropriate to rely on the assessment of a GP or another medical professional, a
social worker, a mental health nurse, or a professional able to communicate effectively
with the testator.239
2.142 We also thought that a code of practice should clearly set out how the testator’s
capacity should be assessed. Based on the legal test, it could outline the sort of
questions that the testator should be asked and encourage the assessor to record
their comments about the testator’s capacity, to reduce the need for retrospective
assessments and the likelihood of disputes.240
2.143 In the Consultation Paper, we considered, but did not favour, requiring a certificate of
capacity for will-making. Although some stakeholders had argued that a scheme
similar to the Lasting Power of Attorney scheme could be introduced to certify
testamentary capacity, we thought that it would be difficult to transplant the LPA
certification scheme to the context of will-making, and was not, on balance, worth
doing. We did not see what value such a certificate would add in practice, given that
professionals instructed to draft wills are impliedly endorsing the testator’s capacity in
drawing up the will. We moreover thought it would place a disproportionate burden on
testators, who could already obtain further evidence of their capacity if they wish to do
so.241
2.144 Accordingly, we provisionally proposed that a certification scheme should not be
enacted.242
2.145 In the Consultation Paper, we also discussed accreditation schemes, with
accreditation for those competent to assess capacity. We did not think that it would be
practical to introduce a scheme operated by a statutory regulatory organisation. But
we commended efforts to create schemes operated by private organisations.243
2.146 A substantial majority of the 102 consultees who responded agreed with our
provisional proposal to introduce a code of practice of testamentary capacity that
would provide guidance on when, by whom and how a testator’s capacity should be
assessed, to be issued under a power contained in statute.244 Those in favour thought
a code would be useful, improve certainty, promote consistency, or raise standards.
Some thought it would make the law more accessible. Some suggested that a code
would be expected, based on the experience with the MCA. Some consultees
highlighted that guidance could be flexible and adaptable.
2.147 The consultees who disagreed made three general arguments against a code of
practice.
(1) First, consultees said that guidance is already provided to those involved in
drafting wills, such as that provided by the Law Society and STEP.
(2) Secondly, consultees argued that a code could not encompass the complexity
of assessing testamentary capacity. Some of these consultees did not think that
a code could improve upon what practitioners already do in practice, or could
not provide for all circumstances, including urgent cases. The Bar Council said
that the combined legal and medical nature of capacity make this a very difficult
issue and referred to research that shows unexpected results emerging from
assessments by doctors and lawyers.245
(3) Finally, some consultees argued that a code would increase the complexity,
time and/or cost of having a will professionally drafted. Some criticised this
proposal as being contrary to the ambition to encourage more people to make
wills or thought it would increase the prevalence of homemade wills, where
capacity would not be assessed at all. Some consultees thought that a code
would increase disputes, allowing a will to be challenged based on minor
failures to follow the code.
2.148 A substantial majority of the consultees responding also agreed that a code of practice
should apply to those preparing a will, or providing an assessment of capacity, in their
professional capacity.246 However, there did appear to be variation in what consultees
understood acting in a professional capacity to mean. Some limited it to certain types
of professionals or those who hold themselves out as competent to provide these
services. A few however thought it should apply more broadly to any third party
charging a fee for preparing a will.
2.149 Some consultees, including some who disagreed with the proposal, thought that the
code should apply more broadly to anyone preparing a will or assessing capacity, or
anyone helping a testator to make a will, whether acting in a professional capacity (or
being paid) or not.
2.150 Many consultees responding to our open question about the content of a code of
practice generally supported a code including guidance on when, by whom, and how
capacity should be assessed. Some offered detailed thoughts on what guidance the
code should give.
2.151 Some consultees said a code would helpfully provide guidance on the types of
behaviours or so-called red flags that might indicate an issue with capacity. The Royal
College of Psychiatrists added that such red flags could include medical indicators but
also circumstantial factors, such as an unexplained change in testamentary wishes or
the presence of relationships of influence. Hugh Jones, a solicitors’ firm, identified the
situation of inconsistent instructions being given by the testator. The Law Society
agreed with the examples of a recent bereavement or diagnosis of dementia that we
gave in the Consultation Paper. Conversely, the Alzheimer’s Society said it would be
concerned about any approach “which states that following a diagnosis of dementia
may be an appropriate time to undertake a capacity assessment”, on the basis that a
diagnosis does not automatically mean a person lacks capacity and it is important that
everyone is presumed to have capacity.
2.152 Some consultees provided their thoughts on the question of who should assess
capacity.
2.153 Four consultees responded to suggest that both medical professionals and lawyers
should be able to assess capacity. Three consultees suggested that only medical
professionals should assess capacity, where it was in doubt. In contrast, four
consultees suggested that legal professionals should assess capacity.
2.154 Other consultees focused on whether those other than legal or medical professionals
should assess capacity. While some consultees were supportive of the idea of such
persons assessing capacity, most consultees who specifically considered the point
were not. For example, the Bar Council said it would be risky to permit social workers
to be responsible for assessing testamentary capacity. Dr Sujoy Mukherjee247
cautioned that careful consideration would be necessary before allowing social
workers or community nurses to conduct assessments:
Mere personal knowledge of the individual is not sufficient to perform a structured
assessment in line with the legal principles and the assessor has to be confident in
their understanding of the law and should be able to stand in the court and face a
cross examination as professional witness if necessary. In my personal experience
even many GPs are not confident and unwilling to take up such role.
2.155 Some consultees favoured a certification scheme, where certain professionals would
be qualified to assess capacity.
2.156 Some consultees generally said that a code should include guidance on the test for
testamentary capacity and how to assess capacity in the wills context or under each
limb of the Banks test. Some noted the need to summarise or explain case law or the
rule in Parker v Felgate, or the need for examples. Hugh Jones was in favour of a
“comprehensive capacity assessment tool”, to improve the quality of assessments and
practitioners’ file notes. Several consultees noted the need for the code to outline the
types of questions to be asked, with the Law Society noting that it should include
examples of how the testator’s responses may or may not provide evidence of
incapacity.
2.157 Some consultees remarked on the need for guidance in relation to fluctuating
capacity. The Law Society added that the code would usefully provide guidance on
more unusual situations, such as where the person has limited communication
abilities, and where it is appropriate to use other professionals, such as interpreters
and speech and language therapists.
2.158 Two consultees suggested that a code should specify that the person assessing
capacity must meet the testator in person.
2.159 The Royal College of Psychiatrists and the Chancery Bar Association both said that
the code should provide guidance on how an assessor should verify that the testator’s
understanding under the Banks limbs is accurate, which might require confirmation of
matters relating to the estate and potential beneficiaries from a third party.
2.160 Several consultees, including the Law Society, Dr James Warner, 248and Martyn Frost,
Stephen Lawson and Professor Robin Jacoby, responding together, said that the
code should provide guidance on how the professional preparing the will should give
instructions to someone engaged to assess the testator’s capacity. For example, the
Law Society said a code would usefully outline how to instruct a professional, together
with sample instructions, and should explain how to examine the opinion to test it for
robustness and compliance with the instructions. Similarly, the code should provide
guidance on when and how a professional approached to do an assessment might
respond, with case studies and examples. The Law Society thought that such specific
guidance might help address the issue of medical professionals being reluctant to
provide opinions on testamentary capacity, “by ‘normalising’” the assessment.
2.161 Many consultees generally suggested that a code should include guidance on record
making and retention.
2.162 Two consultees said that the code should cover how long the capacity assessment
process should take.
2.163 Several consultees, including STEP, said a code should provide guidance on the
situation where a solicitor or will writer is uncertain about the testator’s capacity, but
the testator refuses to have their capacity assessed.
2.164 Five consultees said the code should provide guidance on supporting testators to
maximise their capacity or to achieve capacity.
2.165 Some consultees also commented on how the code should be drafted and reviewed.
For example, STEP said the process must be open and transparent, and must allow a
wide variety of people to contribute. Professor Rosie Harding emphasised that the
process of development and review should include the perspectives of disabled
people, given that they were most likely to be subject to it. The Law Society and
others said that any code must be reviewed and updated regularly, something
consultees thought had not happened with the MCA Code of Practice.
2.166 In response to our provisional proposal that a certification scheme should not be
enacted in relation to testamentary capacity, a very substantial majority of the 100
consultees who responded agreed.249 Many of those opposed to a certification regime
pointed to its likely cost and time consequences, acting as a (further) barrier to will-
making.
2.167 Devon and Somerset Law Society disagreed: they explained that, as they are in
favour of the regulation of will writers, they are also in favour of a certification scheme.
2.168 Dr Juliet Brook agreed that a compulsory certification scheme would be excessive but
argued in favour of a voluntary scheme: she said it would provide testators making
their own wills with “an approved route by which their capacity could be certified ...
giv[ing] them greater confidence in the process” and potentially preventing disputes.
She thought a voluntary scheme could build on pre-existing private accreditation
schemes. Although agreeing with the proposal for other reasons, the Law Society also
thought that a certification scheme (not mentioning whether it would be mandatory or
not) could provide a useful safeguard for what are termed “homemade” wills, where a
testator will not seek professional advice.
2.169 In the Consultation Paper, we noted that the Golden Rule is one of best practice, not
law. 250This position, exceptions to the rule in deathbed cases,251 and doubts over the
value of medical evidence from GPsas opposed to more expensive specialist
psychiatrists,252 led Charles Holbech to conclude in 2012 that the rule had “lost its
lustre”.253 Holbech contended that the growing number of exceptions and caveats to
the rule contrasts with the position in Re Simpson,254 where Mr Justice Templeman
(as he then was) emphasised that it was good practice for practitioners always to
comply with the rule.
2.170 Case law since the Consultation Paper has confirmed that the consequences of failing
to comply with the rule remain the same: non-compliance is not determinative as to
the will’s validity,255 just as compliance does not mean that the will is valid. Arguably,
courts have shown increasing acceptance of solicitors not complying with the Golden
Rule, perhaps reducing its weight.256
2.171 The Court of Appeal has recently emphasised that evidence about the testator’s
capacity will be evaluated on its merits, irrespective of whether the testator’s capacity
was assessed by a solicitor or a doctor. In Hughes v Pritchard, the Court said that the
weight to be given to solicitors’ evidence depends on all the circumstances.257
Similarly, while evidence from a medical practitioner who had met the testator and
assessed their capacity should be given considerable weight, the value of that
evidence in any particular case would again be a question for the court.258
2.172 An additional development is that Government consulted in 2022 on updating the
MCA Code of Practice. Government explained that the Code is in need of updating
following general developments since the Code came into force in 2007, and the
replacement of the deprivation of liberty safeguards with the liberty protection
safeguards within the MCA (following the Law Commission’s work).259
2.173 The competence of solicitors and will writers in ensuring that testators have capacity
when they make a will, and that good evidence of the testator’s capacity is available if
the will is challenged, is of the utmost importance in how the law of capacity operates
in practice. We therefore think that clarification of the Golden Rule should come in the
form of detailed guidance to solicitors and will writers.
2.174 Capacity is a matter of degree. There is no doubt that, in many cases, assessing
capacity is difficult. This is particularly so as solicitors and will writers are generally not
medical experts, so lack the expertise to identify or understand a testator’s cognitive
limitations. Without training or guidance on how to identify signs of possible underlying
medical concerns, solicitors and will writers might miss them. This was demonstrated
in a study by Robert Hunter and Dr Claire Royston. 260It involved showing films of a
man portraying “excessive function deficits covered by a social veneer” to solicitors
and consultant psychiatrists. One film showed a bad interview technique and one a
good interview technique. With the bad interview technique, only 33% of solicitors
concluded that the person potentially lacked testamentary capacity; with a good
interview technique, 90% did so.261
2.175 The Golden Rule therefore plays a crucial role in directing solicitors’ or will writers’
attention to the issue of capacity, and identifying the circumstances in which particular
care is needed. However, recent case law has continued to modify the Golden Rule
as outlined in Re Simpson, 262particularly in relation to the circumstances in which
capacity must be carefully assessed. In particular, the fact that a testator is elderly
does not necessarily mean that a formal capacity assessment is required.263
Moreover, there are other circumstances that deserve careful attention which are not
expressly addressed by the Golden Rule. We therefore think that the Golden Rule
should be supplanted by detailed guidance to solicitors and will writers.
2.176 STEP, 264the Law Society,265 the Solicitors Regulation Authority,266 the Institute of
Professional Willwriters, 267and the Society of Will Writers and Estate Planning
Practitioners268 have all published guidance on testamentary capacity. While these
documents are important, the guidance they offer is more general and less
comprehensive than we envision would be contained in a code of practice. Most focus
on the need for the client to have capacity, and the need for the person preparing the
will to obtain a medical opinion in cases of doubt. But they do not, for example,
provide detailed guidance on the indicia or “red flags” that might mean that there
should be concerns about the testator’s capacity, or set out the questions that should
be asked as part of a detailed assessment of the testator’s capacity.
2.177 Accordingly, we think that there would be considerable value in a code of practice to
provide detailed guidance to anyone involved in making a will or assessing capacity in
a professional capacity. This code would supplant the Golden Rule to outline best
practice in relation to the circumstances in which the testator’s capacity should be
formally assessed, who should conduct the assessment, and how the assessment
should be conducted.
2.178 We recommend, at Recommendation 1 above, that the MCA test should be adopted
to apply in the wills context, and that the Banks factors should be outlined in the MCA
Code of Practice. The guidance in relation to assessing testamentary capacity should
also be included in the MCA Code of Practice.
2.179 We continue to believe that the guidance in the MCA Code of Practice should be
directed at, and considered by, anyone preparing a will or providing an assessment of
capacity in their professional capacity. This category will cover solicitors preparing
wills, whether for a fee, for free, or as a loss leader; it will also cover medical
professionals conducting capacity assessments and professionals who support a
person’s communication, such as speech and language therapists.
2.180 We also agree with consultees that the guidance should also govern anyone
preparing a will or assessing capacity for remuneration. Applying it to those acting for
remuneration will ensure that anyone who prepares wills for a fee, whether or not they
are legal professionals, as well as anyone who may be involved in conducting
capacity assessments for a fee or as a part of their paid work, whether or not they are
medical professionals, will also comply with the Code.269
2.181 Although we recommend that certain people should be required to have regard to
guidance in the Code, we do not recommend that there should be any specific
consequence for a failure to comply with its guidance. As we explained in the
Consultation Paper, we are not in favour of introducing a statutory duty of care. Non-
compliance could, however, be relevant in any professional negligence or professional
conduct proceedings brought against a person. Further, as is the case in relation to
the current Golden Rule, compliance with the guidance in the Code would provide
evidence of capacity but would not be determinative of the issue. 270Non-compliance
would not render a will invalid, while compliance would not prevent a will being
challenged on the basis that the testator lacked testamentary capacity.
2.182 Under the MCA, the Lord Chancellor is required to produce codes of practice,
including on assessing capacity.271 With the MCA being adopted in relation to
testamentary capacity, the duty to produce guidance will therefore fall on the Lord
Chancellor. However, the Lord Chancellor may - and does - delegate responsibility
for this. 272The current MCA Code of Practice was published by the Office of the
Public Guardian.273 The consultation on a revised Code of Practice was conducted by
the Department of Health and Social Care and the Ministry of Justice. We do not think
it is necessary for us to make a recommendation about who should be responsible for
the portion of an updated Code of Practice dealing with testamentary capacity, as we
think that is a matter for the Lord Chancellor to determine. But as we do think the
Code should remain up to date with developments, we think it should be periodically
reviewed.
2.183 We consider that detailed guidance on all matters relevant to when and how capacity
should be assessed would be of most value. In particular, we think that the MCA Code
of Practice should include guidance on the following matters.
(1) When capacity needs to be formally assessed or investigated: the Code should
outline the questions that a person preparing a will should ask to assess
whether there are any concerns about the testator’s capacity. It should also
outline how those answers should be evaluated, as well as indicia that suggest
that the testator might lack capacity. These indicia might be any evidence of
diagnosis of specific medical disorders but will also include circumstantial
factors, including recent bereavement, and the testator’s demeanour. Examples
will be useful here.
(2) Who should assess capacity: when capacity needs to be formally assessed, the
Code should outline the considerations the person preparing the will should
give to the issue of who is best placed in the specific case to perform a capacity
assessment. We note that consultees’ views on the types of people who should
be able to conduct assessments varied, and we do not think that we are able to
offer a definitive view. However, we think this is something that should be
considered in detail as a part of drafting the guidance in the Code. Given the
time and cost implications of obtaining an assessment from a medical
professional, including a GP, we continue to think there is merit in exploring
whether non-medical professionals, including solicitors experienced in
assessing capacity and social workers, should be able to assess capacity. For
example, we note that STEP has trialled a course for its members on assessing
testamentary capacity, with the plan that it will lead to an accreditation. We think
that this is a positive development. We support this and other private
accreditation or training schemes being considered when the code is
developed.
(3) How capacity should be formally assessed: the Code should outline in detail
how capacity to make a will should be assessed, giving advice on the questions
to be asked and how answers should be evaluated (including if and how to test
them against external evidence that confirms the testator’s understanding). It
should provide guidance on how assessments should be undertaken in a
variety of circumstances, such as where the testator has fluctuating capacity or
specific communication needs.
(4) How solicitors and will writers should instruct third parties assessing the
testator’s capacity: we agree that it would be useful for the Code to provide
sample instructions to a third party assessing capacity, together with general
guidance for those providing instructions. This should include guidance to the
person preparing the will as to how to judge the assessment provided by a third
party.
(5) Record keeping: the Code should be clear about the evidence and records that
a person preparing a will or assessing capacity should make and keep, and for
how long. Samples of records would be useful.
(6) How long a formal capacity assessment should take: we think the Code should
outline a recommended timescale as to how long a capacity assessment should
take. The assessment should not create significant delays to the person making
their will in the normal course, and where someone’s capacity is declining
rapidly or they are dying, it should be completed as an urgent matter. It should
also outline the steps the person preparing a will should take if a capacity
assessment is taking longer than the recommended time frames, and their
obligations where circumstances mean that a capacity assessment may not be
possible before the testator dies, or their capacity is significantly impaired.
2.184 In order to be effective, the Code should include all relevant information on
testamentary capacity. This will necessarily include the test governing testamentary
capacity, the presumption of capacity, and when the testator must have capacity.
2.185 In Chapter 4, we consider supported will-making. In adopting the MCA, the MCA
principle of support in section 1(3) will apply to will-making. We therefore think that the
MCA Code of Practice should also include guidance on how testators should be
supported to have capacity.274
2.186 We recommend that there should be a code of practice on testamentary capacity
issued under the MCA that -
(1) anyone preparing a will, or providing an assessment of capacity, in their
professional capacity or for remuneration, should be required to have regard
to; and
(2) is developed and periodically reviewed as determined by the Lord Chancellor.
2.187 We recommend that the code should include guidance on -
(1) when capacity needs to be formally assessed;
(2) who should assess capacity;
(3) how capacity should be assessed;
(4) instructions from solicitors and will writers to any third-party assessors about
assessing capacity;
(5) record keeping; and
(6) how long a formal capacity assessment should take.
2.188 We recommend that the code should also include other information on testamentary
capacity, including the test, the presumption of capacity, when the testator must
have capacity, and how testators should be supported to have capacity.
2.189 By adopting the MCA as the test governing capacity, in clause 23(3), the draft Bill
does not need to do anything further to enact our recommendations for a code of
practice to be made to provide guidance on assessing testamentary capacity under
the MCA.
2.190 Section 42(1) of the MCA requires the Lord Chancellor to prepare and issue one or
more codes of practice, including, in subsection (a), “for the guidance of persons
assessing whether a person has capacity in relation to any matter”. The reference to
“capacity in relation any matter” means capacity in relation to any matter to which this
Act is relevant. By virtue of clause 23(3), this will include will making.
2.191 Existing section 42 of the MCA also serves to enact our recommendation that anyone
preparing a will or providing an assessment of capacity, either in their professional
capacity or for remuneration, should be required to have regard to the guidance on
testamentary capacity in the Code. As noted by the Law Society, a person acting for
someone who lacks capacity in a professional capacity or for remuneration (among
others) is under a duty to have regard to any relevant code issued under the MCA
Code of Practice, under section 42(4)(e) and (f). 275No further specific provision is
therefore necessary.
2.192 What our Bill cannot do is draft the guidance in the Code itself. Under section 42 of
the MCA, it will be for the Lord Chancellor to issue the code of practice, and to
determine what guidance it provides. But we recommend that the MCA Code of
Practice should be updated to include within it detailed guidance on assessing
testamentary capacity, covering the matters that we have outlined in this chapter.
3.1 The Court of Protection is able to make certain decisions, or take certain actions, for
those who lack capacity. One of the actions that the court can take is to make a will for
a person who lacks capacity - a “statutory will” - under section 18 of the Mental
Capacity Act 2005 (“the MCA”). There are between 200 and 300 such applications
each year.276
3.2 In this chapter, we refer to the person on whose behalf the statutory will is made as
“the testator”. When discussing the person subject to the intervention of the Court of
Protection generally or outside the context of statutory wills, we refer to them as “the
person”, which reflects the language of the MCA in which they are referred to
(including in the context of a statutory will) as “P”.
3.3 In our project, we have considered whether reform is necessary to the best interests
test - the test which applies to determine whether a statutory will can be made and in
what terms - the circumstances in which a statutory will can be made for a person,
and the procedure governing statutory wills.
3.4 In relation to the bests interests test, we endorse the Law Commission’s earlier
recommendation in our Mental Capacity and Deprivation of Liberty Report that section
4(6) of the MCA should be amended to require that decision-makers give “particular
weight” to the person’s wishes and feelings when determining their best interests.277
3.5 We also recommend, in the light of our recommendation in Chapter 10 that the age of
testamentary capacity should be lowered to 16 years old,278 that the age at which the
Court of Protection can make a statutory will for a person should also be lowered to
16.
3.6 Finally, we recommend that a limitation on the effect of gifts in a statutory will of
immoveable property located in other jurisdictions or gifts of movable property from
foreign-domiciled testators should be removed.
3.7 We do not recommend any changes to statutory will proceedings.
3.8 In the Consultation Paper, we first considered the best interests test, which is the test
which the Court of Protection must apply when determining whether to make a
statutory will for a testator and in what terms. We then considered the circumstances
in which the Court can make a statutory will.
3.9 A statutory will can make any provision that the testator could have made if they had
capacity, and the effect of a statutory will is the same as if the testator had made a
valid will themselves.279
3.10 The testator must be 18 and over for a statutory will to be made for them. 280This age
requirement mirrors the age requirement to make a will in section 7 of the Wills Act
1837.
3.11 According to Court of Protection Practice 2025, a statutory will application should be
considered in the following types of circumstances.
(1) Where there has been a major change to the testator’s circumstances (such as
revocation of their previous will by marriage or a significant change in the
testator’s financial circumstances), or to beneficiaries under their current will or
to prospective beneficiaries.
(2) Where a gift of property in the testator’s current will has adeemed.281
(3) Where there are doubts over the validity of a previous will made by the testator,
or a possibility that a previous will might have been made in suspicious
circumstances.
(4) Where there is no provision in the testator’s current will for a person for whom
they could be expected to provide.282
3.12 As with other decisions which can be made on behalf of persons without capacity
under the MCA, the making of a statutory will for a testator is governed by the best
interests test: that is, under section 1(5) of the MCA, any act done or decision made
for a person under the MCA must be done or made in their best interests.
3.13 Section 4 of the MCA requires the Court of Protection to consider “all the relevant
circumstances” when applying the best interests test and outlines requirements in
making the assessment of the person’s best interests. As we explained in our report,
Mental Capacity and Deprivation of Liberty, section 4 requires that the decision-
maker:
(1) must not make their decision 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;
(2) must consider whether the person 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; and
(6) must consult a number of people including carers, donees of lasting powers of
attorney, deputies, and anyone else named by the person.283
3.14 There is no hierarchy to these requirements, although in Aintree University Hospitals
NHS Foundation Trust v James, Lady Hale suggested that significant weight should
be given to the person’s wishes and feelings. 284In our report Mental Capacity and
Deprivation of Liberty, we recommended an amendment to section 4, specifically to
section 4(6), to ensure that decision-makers must ascertain the person’s past and
present wishes and feelings and must attach “particular weight” to them when
applying the best interests test.285
3.15 In the Consultation Paper, we explained some of the concerns about the best interests
test, and how it is applied in the context of statutory wills. These concerns led us to
consider Article 12 of the UN Convention on the Rights of Persons with Disabilities
(“UNCRPD”). Article 12 provides that: persons with disabilities should enjoy legal
capacity on an equal basis with others; states should help persons with disabilities to
access support in exercising their legal capacity; and measures relating to legal
capacity should “respect” the rights, will and preferences of persons with disabilities. It
is this latter point, contained in Article 12(4), which we have particularly focused on in
relation to statutory wills.
3.16 We also noted the interpretation of Article 12 by the Committee on the Rights of
Persons with Disabilities in General Comment No 1, which the UK must have regard
to, but is not bound by, when interpreting and implementing the UNCRPD. 286In
General Comment No 1, the Committee said that compliance with Article 12 requires
states to replace substituted decision-making frameworks, where decisions are made
for persons with disabilities (like best interests tests), with supported decision-making
frameworks, where persons with disabilities receive support in exercising their legal
capacity. These supported decision-making frameworks should be based on the
person’s will and preferences.287
3.17 In the Consultation Paper, we outlined our provisional proposal not to reform the best
interests test and the way in which the courts apply that test in relation to statutory
wills. In our provisional view, reform of the best interests test in relation to statutory
wills would require the removal of statutory wills from the rest of the MCA framework,
because the best interests test underpins the MCA as a whole. We did not think that
this move was desirable.288
3.18 However, we explained that the best interests test and its interpretation have been
criticised. We noted the argument that the best interests test is inherently
inappropriate in the context of statutory wills, as it is difficult to apply a best interests
test to dispositions which will only take place after a person’s death.289 We also
commented on concerns about the court’s interpretation of best interests, noting the
risk that “the principle of [respecting] the best interests of the testator is, in fact,
overridden by other (less justifiable) reasons, which are concealed behind the best
interests test”.290
3.19 In particular, there has been criticism of the court’s interpretation of best interests as
meaning that it is in the testator’s best interests to be remembered as having “done
the right thing” by their statutory will.291 Some commentators have observed that this
interpretation of best interests could be manipulated, to “transform common courtesy
and generosity to others into some form of entitlement to be included in a will that P
[the testator] would not necessarily have made”.292
3.20 We also considered the concern expressed by Professor Rosie Harding that statutory
wills can be used to settle disputes between family members by distributing assets
pragmatically between them, rather than reflecting the testator’s best interests.293
3.21 However, we thought that this approach to statutory wills might be consistent with the
testator’s best interests and their wishes and feelings, as it is unlikely that the testator
would wish the value of their estate to be depleted by the costs of litigation if it could
be avoided.294 We also considered that criticisms of the best interests test could inform
the development of case law on best interests in statutory wills proceedings.
Accordingly, we concluded that there may be no need to reform the test.295
3.22 As part of our consideration of the criticisms surrounding the best interests test, we
also noted concerns that the test may not be compliant with Article 12 of the UNCRPD
and the requirement for the testator to be supported in exercising their legal capacity,
given that the test enables substituted decision-making. 296We commented that the
case law was evolving, with the Court of Protection increasingly prioritising the
testator’s wishes and feelings when applying the best interests test.297 Therefore, in
practice, we thought that statutory wills proceedings were likely to be compliant with
Article 12 of the UNCRPD and the requirement for the testator to be supported in
exercising their capacity.298 Furthermore, we thought that, if implemented, our previous
recommendation in the Mental Capacity and Deprivation of Liberty project to give
particular weight to the person’s wishes and feelings in the best interests test would
ensure respect for the testator’s will and preferences in statutory wills proceedings, in
line with Article 12(4).299
3.23 However, we tested this view with consultees, by asking if they agreed with our view
that reform is not needed in relation to the best interests test and the way in which the
Court of Protection applies that test to determine whether to make a statutory will for a
person.300
3.24 We also provisionally proposed that no additional restrictions were necessary on the
circumstances in which statutory wills can be made. In particular, we thought that we
should not restrict statutory wills to cases where the testator had previously made a
will, as this restriction would mean that the estates of people who have never had
capacity, or who did not execute a will before losing capacity, would necessarily be
distributed under the intestacy rules. We thought that this outcome could be unfair.301
3.25 We tested this view with consultees, asking whether they agreed with our view that
reform is not required to restrict the circumstances in which a statutory will can be
made.302
3.26 However, we did suggest that the law should be changed so that the Court of
Protection can make statutory wills for those aged 16 and above.303 We made this
provisional proposal to ensure consistency with our provisional proposal to lower the
age of testamentary capacity to 16 under the Wills Act 1837, and to create parity with
other medical and social decisions, where we suggested that the law is increasingly
treating 16- and 17-year-olds as adults.304
3.27 Of the consultees who responded to our question about the bests interests test, the
way it is applied, and the circumstances in which a statutory will can be made, a very
substantial majority agreed that it was unnecessary to reform the law governing
statutory wills.305 In particular, consultees argued that it would be undesirable for the
Court of Protection to apply a different test for statutory wills compared to its other
duties under the MCA, and that recent case law on the best interests test has shown
increased consideration of the testator’s wishes and feelings, such that there was no
need to reform the way in which the test is applied. Consultees also thought that it
would be unfair to restrict statutory wills to those who have previously made a will,
noting that many people make wills later in life, and this restriction would adversely
affect people with lifetime disabilities who have never had testamentary capacity.
3.28 Some stakeholders, including the Bar Council and Dr Lucy Series, 306disagreed that
there was no need to reform the best interests test. These consultees expressed
concern that the best interests test is unsatisfactory in the testamentary context, as it
gives no guidance to the court on how to formulate testamentary dispositions, with the
result that the court’s approach to the test is artificial and inconsistent.
3.29 Several consultees expressed concern that the best interests test enables the court to
override the testator’s wishes and feelings. Many of these consultees expressed
support for the recommendation in our Mental Capacity and Deprivation of Liberty
Report to give “particular weight” to wishes and feelings in the best interests
assessment. A couple of these consultees, including Dr Lucy Series and Denzil
Lush, 307suggested that the Law Commission go further. They thought that we should
recommend replacing the best interests test in the context of statutory wills with a
substituted judgement approach, whereby the court attempts to formulate the will
which the testator would have made for themselves if they had testamentary capacity.
3.30 A few consultees also thought that there should be reform to the scope of the court’s
jurisdiction. They argued that the making of a statutory will in circumstances where
there is evidence that the testator has made a conscious decision not to make a will,
or intended the intestacy rules to apply, contravenes testamentary freedom.
3.31 Some consultees (whether agreeing or disagreeing) raised concerns about paragraph
4 of Schedule 2 to the MCA. This provision makes statutory wills ineffective in relation
to both immovable property outside England and Wales, and movable property if, at
the time of execution, the testator is domiciled outside England and Wales and their
testamentary capacity would be determined by the law of a jurisdiction other than
England and Wales.
3.32 Since the Consultation Paper, there have been no reported cases on statutory wills
involving the application of the best interests test. However, case law in other areas of
the Court of Protection’s jurisdiction shows that the court has continued the trend
which we identified in the Consultation Paper of prioritising the person’s wishes and
feelings when applying the best interests test. However, it is unclear whether these
developments have affected the Court of Protection’s approach to statutory wills.
3.33 In serious medical treatment cases, some commentators consider that there is now a
“hierarchy” in the best interests test, with priority assigned to the person’s wishes and
feelings.308 In an analysis of reported case law on medical treatment, welfare, and
property and affairs between January 2015 and September 2020, Alex Ruck Keene
KC (Hon) and Michal Friedman concluded that, “at a minimum”, the Court of
Protection is taking the person’s wishes and feelings seriously.309 They noted that
where the court overrides the person’s wishes and feelings, it justifies its decision, and
departures from person’s wishes and feelings are often driven by external factors such
as resourcing constraints rather than paternalism.310
3.34 The Court of Appeal also recently confirmed the importance of wishes and feelings in
Re AB (Termination of Pregnancy).36 The court overruled the decision by Mrs Justice
Lieven that an abortion was in a woman’s best interests on the basis that the
judgment gave insufficient consideration to the woman’s wishes and feelings. The
Court of Appeal noted that the trial judge had accorded less weight to the woman’s
wishes on the basis that they were unclear and inarticulate. Whilst she was entitled to
make this judgment about the woman’s wishes, she could not accord less weight to
the woman’s feelings on the same basis. Although noting that the MCA provides
limited guidance as to the proper approach for the bests interests analysis,311 Lady
Justice King reasoned that the statute requires judges to consider both wishes and
feelings, and the woman’s feelings were “uniquely her own” and, unlike her wishes,
“not open to the same critique based upon cognitive or expressive ability”.312
3.35 Government’s proposed update to the MCA Code of Practice would reflect these
developments in the case law by emphasising the importance of the person’s wishes
and feelings, confirming that they can be “the deciding factor” for decision-makers.313
The proposed update would also require decision-makers to justify their decision if
they depart from the person’s wishes and feelings: the greater the departure, the more
justification would be required.314
3.36 We continue to think that, in line with our provisional proposal, we should not
recommend reform to the best interests test solely in relation to statutory wills. As we
explain below, we disagree with the consultees who suggested that substituted
judgement would be an appropriate replacement for the best interests test in the
statutory wills context; we think that the best interests test is the appropriate test to
use. Although we acknowledge that there are concerns with the test and its operation,
particularly about its compliance with Article 12 of the UNCRPD, we continue to think
that the developments in the application of the test may mean that the test is now, in
practice, compliant with Article 12. Nevertheless, as we have stated before, we think
that it would be a step forward in terms of compliance with the UNCRPD for the
legislation itself to make clear that the person’s wishes and feelings must be
ascertained and ought to be prioritised. 315We therefore endorse our recommendation
in the Mental Capacity and Deprivation of Liberty Report that the best interests test
should be modified to require “particular weight” to be given to the person’s wishes
and feelings.316
3.37 Some stakeholders, including the Bar Council, disagreed. The Bar Council argued that
the best interests test is inappropriate in the testamentary context as it is difficult to
apply to testamentary dispositions, which will only take effect after the testator has
died. By their nature, wills do not benefit the testator, and are only effective upon the
testator’s death. Similarly, DWF LLP317 observed that it is arguably in the testator’s
best interests to preserve their assets, so not to obtain a statutory will. The statutory
will is of no benefit to them and obtaining it will only deplete their assets during their
lifetime, as the testator will bear the costs of the proceedings.318
3.38 However, we remain of the view that best interests is the appropriate test to use in the
statutory wills context, provided that the court gives particular weight to the testator’s
wishes and feelings. Ultimately, we are unconvinced that a statutory will is sufficiently
distinct from the other situations addressed under the MCA to warrant an entirely
different approach. We think that the best interests test can and does work effectively
even if the decisions to be made - where the testator’s property will go on their death
- are ones which do not directly affect the testator during their lifetime. We think that
making a will, including a statutory will, can benefit the testator, even if it does not do
so directly. Obtaining a will, which usually involves a cost, is clearly worthwhile for
many people. People are invested in making arrangements for what will happen to
their assets after they die just as they are concerned about their friends and family
and the causes close to their hearts when they are alive.
3.39 Some consultees suggested that a pure substituted judgement approach be adopted,
which was the approach used in statutory wills proceedings prior to the MCA. 319Under
this approach, the court attempts to formulate the will which the testator would have
made if they had testamentary capacity. The consultees who were in favour of
adopting substituted judgement noted that it would ensure a focus on the testator’s
wishes and feelings and thus promote compliance with Article 12(4) of the UNCRPD.
3.40 Whilst the test today is one of best interests, case law has confirmed that substituted
judgement has been “subsumed” into the best interests test and so remains a
component of the assessment in statutory wills proceedings.320 We think that
substituted judgement should not, however, be the test for making a statutory will, for
the reasons we identified in our 1995 report on Mental Incapacity, which was the basis
for the MCA. In that report, we noted that substituted judgement treats the testator as
if their capacity were unimpaired, and so does not assign sufficient weight to their
present wishes and feelings.321
3.41 We are also concerned that substituted judgement may lead to artificial analysis in
cases where the testator never had testamentary capacity, and so there may be no
history of wishes and feelings for the courts to consider. When the substituted
judgement approach governed statutory wills, it appears that few such cases came
before the courts. However, in Re C, a case in which the testator was born with a
severe mental disability, the court’s approach was to assume that the testator “would
have been a normal decent person, acting in accordance with contemporary
standards of morality”.322 This approach was criticised for its artificiality in Re M,323 a
statutory will case under the MCA, and so we think there is a risk that a return to
substituted judgement would lead to similar artificial analyses in these cases. We note
comments by Denzil Lush that cases where a testator has never had testamentary
capacity “occur more frequently than one might think”.
3.42 We moreover do not think it is a good idea to have different tests for statutory wills
depending on whether the testator previously had capacity or not. There is only one
test for decisions under the MCA, which applies regardless of whether the person
previously had capacity. We do not think that the statutory wills context is sufficiently
distinct compared to the other decisions under the MCA to warrant a different
approach. Moreover, as substituted judgement has been incorporated within the best
interests test, adopting substituted judgement for some testators and best interests for
others might, in practice, be no more than a change in name rather than a change in
substance.
3.43 Accordingly, we are in favour of retaining the best interests test. However, we think
that giving the priority to the person’s wishes and feelings in determining their best
interests should be required within the MCA itself, as we recommended in our
previous project on Mental Capacity and Deprivation of Liberty.324
3.44 We understand the concern that the best interests test does not comply with Article
12(4) of the UNCRPD, which requires that measures relating to legal capacity respect
the person’s rights, will and preferences. In General Comment No 1, the Committee
on the Rights of Persons with Disabilities expressed the view that measures based on
“objective best interests” are incompatible with Article 12 and all measures should be
based on will and preferences.325
3.45 In the Consultation Paper, we noted the concern that the best interests test may
disguise other factors which have in fact influenced the court’s determinations, rather
than the testator’s wishes and feelings326 - such as the idea that it is in the testator’s
best interests to be remembered for “doing the right thing” by their statutory will.327 For
example, in Re D, 328the Court granted a statutory will in circumstances where there
was an ongoing dispute over the validity of the testator’s recent will. Judge Hodge KC
noted that the statutory will would enable the testator to be remembered by their
family as having done the right thing, instead of being remembered “for having
bequeathed a contentious probate dispute”.329 This interpretation of best interests has
been criticised on the basis that “doing the right thing” could be manipulated to include
a beneficiary in a will where the testator would not have included them.330
3.46 In her consultation response, the Official Solicitor explained that having “done the right
thing” acts as guidance for the Court, particularly where there is little evidence of the
testator’s wishes and feelings, and it is not a factor in the assessment in its own right.
She added that “doing the right thing” has much less weight where there is evidence
of the testator’s wishes and feelings, particularly where that evidence shows the
testator’s values have not aligned with doing the right thing.
3.47 A perhaps extreme example of how little weight doing the right thing may have is
evident in the Court of Protection case of D v JC.331 Senior Judge Lush explained that
the idea of the testator doing the right thing did not offer assistance in that case, in
light of the testator’s conduct.
JC has an appalling track record. He has spent his entire lifetime doing precisely
“the wrong thing” in his relationships with others, and his malevolence is such that
he would probably relish the prospect of thwarting his children’s designs on his
estate and would rejoice at being remembered by them with disaffection.332
As a result, the application of the best interests test in this case resulted in one of JC’s
biological children, who had been adopted, being excluded from inheriting a share of
his estate, by the court making a statutory will that replicated the intestacy provisions.
3.48 Nevertheless, we think that there is value in recommending reform to the way in which
the Court applies its discretion under the best interests test in order to assign greater
priority to the testator’s wishes and feelings. Although in this project we are limited to
considering the best interests test in relation to statutory wills, we have already
considered the best interests test in the MCA more broadly in our project on Mental
Capacity and Deprivation of Liberty.
3.49 Therefore, rather than making a separate, specific recommendation in relation to
statutory wills, we endorse the recommendation from the Mental Capacity and
Deprivation of Liberty Report that section 4(6) of the MCA should be amended so that
a decision maker must ascertain the person’s wishes and feelings and give them
particular weight in applying the best interests test. This amendment would enshrine
the approach which the Court of Protection has adopted in its more recent case law to
focus on the person’s wishes and feelings, and to ensure that it applies equally to
statutory wills. This approach will maintain a coherent best-interests framework for
decision-making under the MCA whilst also minimising paternalistic decision-making
on the testator’s behalf. We also think that assigning particular weight to the person’s
wishes and feelings would bring the MCA into greater alignment with the UNCRPD.
3.50 In their response to our report on Mental Capacity and Deprivation of Liberty,
Government accepted the recommendation that the person’s wishes and feelings
should receive particular weight and agreed that this should be enshrined in law: a
change to be implemented when time allows.333
3.51 However, Government seemingly changed its position during debates on the Mental
Capacity (Amendment) Act 2019. In a letter to members of the House of Lords, Lord
O’Shaughnessy, then Parliamentary Under Secretary of State for Health, said
Government instead favoured a “non-legislative approach” and “cultural change” in
order to ensure that practitioners have regard to the person’s wishes and feelings.
However, Lord O’Shaughnessy also said that Government would consider future
legislative change “if this ... does not secure the improvement we are looking for”.334
3.52 Non-legislative solutions and cultural change are important in order to ensure that
decision-makers have regard to wishes and feelings. Developments such as the
proposed changes to the MCA Code of Practice are welcome in this regard. However,
we think that legislative change in line with our recommendation in our Report on
Mental Capacity and Deprivation of Liberty remains necessary.
3.53 The MCA Code of Practice is guidance; while certain categories of people are
required to have regard to the Code, 335there is no obligation for them to comply with it.
We think that the requirement to give particular weight to the person’s wishes and
feelings should have more “teeth” than this.
3.54 The weight given to the person’s wishes and feelings has implications for compliance
with both Article 12 of the UNCRPD and Article 8 of the European Convention on
Human Rights. Article 12(4) of the UNCRPD requires that measures relating to legal
capacity respect a person’s will and preferences, and any decision to overrule a
person’s wishes and feelings is an interference with their autonomy, which is
protected by Article 8. 336To comply with Article 8, decision-makers should only
overrule a person’s wishes and feelings when it is necessary and proportionate to do
so. Introducing a legal requirement to give particular weight to wishes and feelings
would recognise their importance and ensure that decision-makers only overrule them
when it is justifiable.
3.55 We continue to think, as we provisionally proposed in the Consultation Paper, that we
should not recommend reform in relation to the circumstances in which statutory wills
are made and, in particular, we should not restrict the Court of Protection’s jurisdiction
to cases where the testator has made a previous will.
3.56 As we explained in the Consultation Paper, restricting the Court’s jurisdiction to cases
where the testator has made a previous will would necessarily mean that the estates
of people who have never had capacity would invariably be distributed under the
intestacy rules.337 We agree with consultees that this could adversely affect people
with lifetime disabilities.
3.57 Moreover, in relation to people who previously had capacity but who did not make a
will, we agree with the observations of the Law Society that a person’s failure to make
a will may be unintentional; it does not necessarily demonstrate a positive intention to
die intestate. Many people make wills later in life or in response to a change of
circumstances. We think it would be unfair to penalise this group by denying them the
possibility of a statutory will.
3.58 Some consultees thought that the Court of Protection should not have the jurisdiction
to make a statutory will where there is evidence that the testator has made a
conscious decision not to make a will or is happy with the application of the intestacy
rules. Some consultees commented that a statutory will in these circumstances could
contravene the testator’s testamentary freedom. However, we think that giving
particular weight to the testator’s wishes and feelings in the best interests test will
address this problem. Any statutory will in these circumstances will reflect the
testator’s wishes and enshrine the effect of the intestacy rules. Indeed, the Court of
Protection has previously made statutory wills which reflect the intestacy rules where
there is evidence that this is what the testator would have wanted.338
3.59 We do think that there should be an extension to the Court of Protection’s jurisdiction
in relation to the age of the testator. As we explain in Chapter 10, we recommend that
the age at which a person can make a will should be lowered to 16 years. 339We think
that this age should equally apply to statutory wills. This approach will continue the
current position whereby the age at which a person can obtain a statutory will mirrors
the age of testamentary capacity.
3.60 Some consultees suggested that the Court of Protection should also be able to make
statutory wills for children under 16. Their concern was that some children have large
estates due to receiving compensation payments, for example, following medical
negligence at the time of their birth, but that if the child is estranged from their parent
or parents, it is inappropriate for the estranged parent to benefit from their child’s
estate under the intestacy rules.
3.61 In Chapter 10, we recommend that a child under the age of 16 should be able to apply
to the Family Court for an assessment of their competence to make a will using the
common law test in Gillick. 340If the child is competent for these purposes (what we
term “Gillick competent”), they will be authorised to make a will themselves.
3.62 If the child is not Gillick competent, we do not think that the Court of Protection should
be able to make a statutory will for them. We do not think it is necessary to do so,
because the law already makes provision for these circumstances.
(1) First, under the Court of Protection’s existing powers, it can order a settlement
of the child’s property where it considers that the child will continue to lack
capacity to make decisions about their property when they turn 18 341(including
where the child is sadly not expected to live to 18). This option can assist
children who are incapacitated due to a permanent or long-term intellectual
disability, as the court can then settle their property in accordance with their
best interests. The court can consider any estrangement when determining the
child’s best interests and has done so historically.342
(2) Second, under the Children Act 1989, a person with parental responsibility has
the ability to administer the child’s property for the benefit of a child. Where
there is a dispute about this, or the person with parental responsibility wants the
court’s authorisation, an application can be made to the court for a specific
issue order. 343This provision would apply where a child is not Gillick competent
but would be expected to have capacity when they turn 18. It would appear to
allow a settlement to be made of the child’s property, if doing so is in the child’s
best interests.344
Although these children will be unable to make a will, provision will be able to be made
to make a settlement of their property in their best interests.
3.63 We also think that extending the Court of Protection’s jurisdiction to enable statutory
wills for all children who lack capacity would change the nature of a statutory will.
Statutory wills are only currently available to those who are unable to make a will due
to mental incapacity resulting from a mental impairment; they are not available to
those unable to make a will due to immaturity as a result of their youth. Allowing
statutory wills for children would fundamentally alter the premise and purpose of
statutory wills. We do not think such a radical change is warranted.
3.64 We agree with concerns raised by some consultees about the limitations on the
application of statutory wills in paragraph 4 of Schedule 2 to the MCA. We consider
that these limitations should be removed.
3.65 Paragraph 4 of Schedule 2 to the MCA generally provides that a statutory will has the
same effect as a will made by the testator themselves. In particular, it provides in
subparagraph (3) that a statutory will has the same effect for all purposes as if the
testator had capacity to make a valid will and the will was executed in compliance with
the Wills Act 1837. However, it also contains two exceptions in subparagraph (4):
(4) But sub-paragraph (3) does not have effect in relation to the will-
(a) in so far as it disposes of immovable property outside England and Wales,
or
(b) in so far as it relates to any other property or matter if, when the will is
executed-
(i) P is domiciled outside England and Wales, and
(ii) the condition in sub-paragraph (5) is met.
(5) The condition is that, under the law of P's domicile, any question of his
testamentary capacity would fall to be determined in accordance with the law of a
place outside England and Wales.
3.66 Paragraph 4(4) does not limit the Court of Protection’s jurisdiction to authorise a
statutory will where the testator has immovable property overseas or is domiciled
overseas. Rather, it limits the effect of any such provisions in a statutory will. 345Such
dispositions will be neither substantively nor formally valid according to the domestic
law of England and Wales.
3.67 This stands in contrast to the situation that applies to testators with capacity. Under
the Wills Act 1963 (giving effect to the Hague Convention of 1961 on the formal
validity of wills), 346a will is “treated as properly executed” in England and Wales, so
long as it was executed in conformity with the internal law which applies: where the
will was executed; at the time of the execution of the will or at their death, where the
testator was domiciled, had their habitual residence, or were a national; or, for
immovable property, where the property is situated.
3.68 As a result of Schedule 2 to the MCA and the private international rules of England
and Wales, therefore, there may be situations where gifts of property within a statutory
will would not be formally valid, even though those gifts in a will made in the same
circumstances by a testator with capacity would be.
3.69 This distinction is based on the different private international law rules which govern
the formal validity of a will compared to those that govern testamentary capacity. The
1963 Act expanded the circumstances in which a will would be considered formally
valid under the private international law of England and Wales.347 However, it did not
expand the private international rules governing testamentary capacity.348 These rules
remain governed by the common law.
3.70 Under the private international law of England and Wales, a person’s capacity to make
a will of movables is governed by the law of their domicile at the time of making their
will. It seems most likely (without having been definitively decided) that a person’s
capacity to make a will of immovables is governed by the law where the property is
situated.349
3.71 The limitation in relation to statutory wills under paragraph 4(4) of Schedule 2 to the
MCA therefore tracks the common law in relation to capacity to make a will. It
excludes the effect of a statutory will where, under the private international law of
England and Wales, the domestic law of England and Wales would not govern the
person’s testamentary capacity (a) because the immoveable property is situated
elsewhere or (b) because the testator is not domiciled in England and Wales and the
law of the testator’s domicile would not apply the law of England and Wales to
determine their capacity.
3.72 The Official Solicitor was in favour of our considering whether it would be appropriate
to remove this limitation, so that the Court of Protection could authorise a statutory will
dealing with overseas property where -
in principle, it would be in [the person’s] best interests to avoid how the overseas
property would pass under the operation of the status quo, and where there are no
alternative options under the laws of the country in which the property is situated.
The Official Solicitor noted that the Scottish courts are able to do so under their
equivalent legislation, and that (for reasons explained in paragraph 3.76 below) this
ability could be particularly useful in relation to property located in the European
Union.
3.73 We have therefore considered removing the restriction on a statutory will so that it
could be formally and substantially valid, according to the domestic law of England
and Wales, in relation to foreign immovables or a foreign-domiciled testator. However,
we would not also be altering the underlying private international law governing choice
of law for testamentary capacity (which is outside the scope of our project). Therefore,
the Court of Protection would be able to make provision in a statutory will for a testator
based on a test of testamentary capacity that, according to English private
international law, does not apply to the person for the purpose of the succession of the
specified property. The purpose of doing so would be to make the disposition valid, in
certain circumstances, in the jurisdiction where the property is located or the testator
is domiciled.350
3.74 In relation to gifts of immovable property, the benefit of abolishing the limitation in
paragraph (4)(a) would be to allow the statutory will to be enforced in the jurisdiction
where the property is located. Specifically, without the limitation, the gift could be
recognised in circumstances when the foreign jurisdiction’s own private international
law would determine that English domestic law applies to determine the testator’s
testamentary capacity.
3.75 For example, repealing this limitation would ensure that a statutory will would be
recognised in a European Union country where a UK national owned immovable
property.
3.76 This perhaps is the most likely situation to arise, for example, where a UK national
owns a holiday home in Spain. In these cases, the Court of Protection would consider
the private international law of the European member state where the property is
located. In many cases, this law would be the European Union Succession
Regulation.351 The Succession Regulation allows testators to choose the law of their
nationality as the law that governs their succession, by express declaration in their
will. 352Accordingly, if paragraph 4(4) of Schedule 2 to the MCA were abolished, and a
choice of law provision were inserted into the testator’s statutory will stating that the
law of England and Wales applies, the Court of Protection could be confident that the
statutory will would validly govern the succession of the immovable property in the
jurisdiction where it was located. A statutory will for a UK national which disposed of
their house in Spain would be a valid testamentary disposition under the will, and one
which would be recognised in Spain.
3.77 In relation to gifts of movable property353 by a testator who is domiciled outside
England and Wales (and whose domicile would not apply the law of England and
Wales to determine their capacity), the benefit of abolishing the limitation in paragraph
4(4) and (5) would not be to facilitate the law of England and Wales applying to
determine the testator’s capacity. Instead, abolishing the limitation could facilitate the
foreign jurisdiction, where the testator is domiciled, to recognise the statutory will for
other reasons.
3.78 One such reason could be if that foreign jurisdiction would characterise the statutory
will as a “protective measure” under the Hague Convention on the International
Protection of Adults. 354Should England and Wales 355have jurisdiction under that
Convention,356 a valid statutory will might be recognised and enforced in other
contracting states to the Convention.357
3.79 Whether a statutory will would be considered a “protective measure” by a foreign
jurisdiction is not entirely clear, and separate jurisdictions might characterise it
differently. It is worth noting that many jurisdictions do not have anything like statutory
wills. Richard Frimston has explained that:
Those states that have ratified Hague 35 may recognise a statutory will as being a
protective measure, although some may classify it as a matter of succession and
outside the scope of Hague 35 entirely.358
3.80 Given the possibility that a foreign jurisdiction might recognise a valid statutory will as
a protective measure, we think it is worth abolishing the limitation in paragraph 4 of
Schedule 2 in relation to gifts of movable property.
3.81 We also think that we should remove these two limitations on the ground of fairness. A
testator without capacity for whom a statutory will is made should be put in the same
position as a person with capacity: they should be able to make provision for the
disposition of all of their property in their will.359 Moreover, being able to deal with the
succession of all of their property in a statutory will may save the testator’s estate
costs, if it might prevent separate proceedings from being needed in another
jurisdiction.
3.82 We endorse the recommendation in our report on Mental Capacity and Deprivation
of Liberty that section 4(6) of the Mental Capacity Act 2005 should be amended to
require that anyone making a best interests determination must give particular
weight to the person’s wishes and feelings.
3.83 Because this recommendation is an endorsement of one we have previously made,
and the previous recommendation extends beyond the law of statutory wills, the draft
Bill does not itself make any amendment to the MCA to bring it into force. However,
the draft Bill which enacts the recommendations in our Mental Capacity and
Deprivation of Liberty does provide for the change necessary to the MCA to bring this
recommendation into effect.360
3.84 We recommend that the age at which a statutory will can be made for a person
should be reduced from 18 to 16 years, in order to remain consistent with the age of
testamentary capacity.
3.85 Paragraph 19 of Schedule 4 to the draft Bill enacts Recommendation 7, reducing the
age at which a statutory will can be made for a person from 18 to 16 years.
3.86 We recommend that the limitation in paragraph 4(4) and (5) of Schedule 2 to the
Mental Capacity Act 2005 should be removed such that a statutory will authorised
by the Court of Protection has effect in relation to -
(1) immovable property outside of England and Wales, and
(2) any other property or matter, other than immovable property, where the
person is domiciled outside of England and Wales and the question of their
testamentary capacity does not fall to be determined in accordance with the
law of England and Wales.
3.87 Paragraph 20(3)(c) of Schedule 4 to the draft Bill enacts Recommendation 8 by
amending the MCA to omit subparagraphs (4) and (5) of paragraph 4 of Schedule 2 to
the Act.
3.88 In addition to considering the substantive law governing statutory wills, we also briefly
considered in the Consultation Paper whether any reforms could be made to the
procedure governing statutory wills in order to reduce the cost and length of
proceedings.
3.89 Whenever an application for a statutory will is made, the Court of Protection must
consider adding the testator to the proceedings as a party.361 The testator is usually
joined as a party unless the application is very simple. The Court will then invite the
Official Solicitor or another person to act as the testator’s litigation friend.362
3.90 The Official Solicitor has criteria to determine whether she can consent to act as the
testator’s litigation friend.363 Such criteria include the requirement that there be
sufficient security for the Official Solicitor’s costs, which will usually be met by the
testator’s liquid assets being sufficient for these purposes. Once she has accepted the
court’s invitation to act as the testator’s litigation friend, the Official Solicitor reviews
the application, supporting evidence, and any responses, and she will also make
requests for any further information she considers necessary in order to fully consider
the testator’s best interests. The Official Solicitor will also consider how best to involve
the testator in the proceedings. The Official Solicitor has told us that, where
appropriate, she will instruct a Court of Protection visitor to meet the testator to
discuss the application and ascertain their views. She will also write to those involved
in the testator’s care (if relevant) to request further background information.
3.91 After the court issues the application, the applicant must serve the application on the
Official Solicitor and the other respondents. Although the Court of Protection Rules
2017 provide that service of an application should take place within 14 days of issue,364
the usual initial directions order in statutory wills applications directs the applicant to
effect service within five working days of receipt of that order. Any respondent wishing
to participate in the proceedings must file an acknowledgment of service within 14
days of service (and file any evidence they wish to rely on within 28 days of service).365
The respondents 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.366
3.92 Upon issuing the application, the court will (in addition to making directions regarding
service) usually direct the parties to jointly report back to the court within 14 weeks of
issue, to confirm whether agreement has been reached, whether further time is
required, or whether a hearing should be listed. The Official Solicitor has explained
that, in practice, only a minority of cases are finalised within the initial 14-week period.
However, agreement is eventually reached in the majority of statutory wills
applications (albeit sometimes after an initial dispute, the provision and consideration
of further evidence, or procedural issues being addressed). It may be that the terms of
the proposed statutory will agreed between the parties are quite different to those
originally proposed by the applicant. Most cases in which agreement is reached are
finalised within six to 12 months of the application being served on the Official
Solicitor. Where the application is contested, and a final hearing is necessary, the
proceedings can take between one and two years.
3.93 The Official Solicitor has reported to us that, on average, her costs are £4,000 (plus
VAT). However, her costs (and the other parties’ costs) will be significantly higher in
cases which proceed to a final contested hearing. The general rule as to costs in
property and affairs applications is that all parties’ costs are payable from the person’s
funds.367 However, the court does have the power to depart from this general rule if
circumstances justify it. 368Costs which are paid from the person’s funds will be subject
to detailed assessment by the Senior Courts Cost Office.
3.94 In the Consultation Paper, we noted stakeholders’ concerns about the cost of statutory
wills proceedings and the frequent delays. We observed that increasing the resources
of the Court of Protection and the Official Solicitor is beyond the ambit of law reform.369
Nevertheless, we asked an open question for consultees’ views on reforms which
could usefully be made to the procedure by which statutory wills are made to reduce
the cost and length of proceedings.370
3.95 We specifically considered and rejected the suggestion that it should be possible for
the court to complete a statutory will after the testator has died. We thought that this
change would put statutory wills at odds with the MCA framework, which governs
decision-making for living persons, and noted that expedited hearings are available if
it is possible that the testator will die before the hearing.371
3.96 Responses from consultees on whether procedural reforms should be made were
mixed.
3.97 Half of the consultees responding were in favour of reforms to the procedure
governing statutory wills,372 with many representative bodies, including the Law
Society, Chancery Bar Association, Bar Council and STEP proposing reforms.
3.98 Many consultees proposed the introduction of a fast-track process. Consultees had
varying views on when this process could be used, with some suggesting that it would
be appropriate for non-contentious cases; when the estate is valued below a certain
threshold; or where the application would only entail simple changes to an existing
will, or distribution under the intestacy rules.
3.99 Other consultees were concerned that the Official Solicitor’s practices cause delay
and add to the expense of proceedings. Several suggested that the Official Solicitor
should be involved in statutory wills proceedings less frequently - some consultees
commented on situations where they considered that the Official Solicitor’s
appointment was unnecessary, and a few consultees suggested alternative sources of
representation for the testator. Others suggested that the Official Solicitor’s decision-
making processes should be more transparent - for example, by requiring her to
publish guidance on her policies.
3.100 Five consultees suggested that the Court of Protection should be able to make
statutory wills after the testator’s death, and a few recommended other procedural
changes, such as mandatory mediation, and changes to the costs rules.
3.101 Only a small minority of consultees were opposed to reform.373 Some of these
consultees thought that statutory wills proceedings are cost-effective compared to
contentious probate proceedings. Others noted that the costs are a necessary
safeguard to ensure that the proceedings reach the correct outcome and the will is in
the testator’s best interests. A few consultees thought that there were too few
statutory will applications to justify reform.
3.102 Many consultees, whether agreeing or disagreeing, commented on the delays in
statutory will proceedings. Some consultees took the opportunity to suggest an
increase in resources for the Official Solicitor and/or the Court of Protection.
3.103 We have carefully considered consultees’ suggestions about reforms to the procedure
by which statutory wills are made. However, we think that the majority of suggestions
made by consultees are matters of practice which are best considered and addressed
by the Court of Protection itself under its existing procedural powers. Although we do
see weight in the argument that the Official Solicitor should explore alternatives to
acting as the testator’s litigation friend with the aim of reducing the cost and/or length
of statutory wills proceedings, we also think that the Official Solicitor’s view that she
adds expertise, consistency and independence to statutory wills cases is compelling.
3.104 We first outline the proposals which we consider to be matters of practice, and then
consider whether the Court of Protection’s jurisdiction should be extended to enable it
to make statutory wills after the testator’s death.
3.105 The most popular suggestion by consultees was the introduction of a fast-track
process so that the Court of Protection could hear certain statutory wills applications
more quickly and at a lower cost. Some consultees, including the Chancery Bar
Association, thought that it would be suitable and appropriate for the court to decide
non-contentious applications in this way.
3.106 However, it is already possible for the court to make decisions “on the papers” (that is
without a hearing) under the current rules.374 We understand that the court does in
practice make final orders on the papers where applications are non-contentious.375
Moreover, an expedited process is also available for urgent and without notice
applications under Practice Direction 10B.
3.107 Some consultees suggested the use of a fast-track process in other cases. The Bar
Council thought that it would be appropriate where the testator’s estate was of lesser
value. Anthony Collins Solicitors LLP thought that it could be used where the
application proposed only minor changes to the testator’s existing will or would
distribute the testator’s estate in accordance with the intestacy rules but appoint an
executor.
3.108 Consultees’ concerns appeared to be about the proportionality of a lengthy and
expensive hearing when the application might seem relatively simple. However, in all
these cases, there is still a need to ensure that the statutory will is in the testator’s
best interests. Accordingly, we do not think it is right for the process to operate
differently in these cases.
3.109 Furthermore, we note the concern expressed by Hugh James376 that statutory will
proceedings involve “checks and balances” to ensure that the statutory will is
necessary, in the testator’s best interests, and that relevant parties are given notice of
the proceedings so they have the opportunity to make representations. These checks
and balances are particularly critical in urgent and without notice applications where a
party or parties may be unable to make representations, as the ability to make and
answer a case is relevant to the right to a fair trial under Article 6 of the European
Convention on Human Rights and the principle of fairness at common law.377 There is
therefore a risk that urgent and without notice applications can breach the
respondent’s Article 6 rights. 378Although each case is different, the court must strike a
careful balance when it hears applications urgently and makes decisions on the
papers.
3.110 We think that the Court of Protection is best placed to decide whether an application is
suitable for determination on the papers, under its powers in Parts 1 and 3 of the
Court of Protection Rules,379 or pursuant to an expedited process under Practice
Direction 10B. We therefore do not think any change in practice is required.
3.111 Separately, several consultees suggested that the Official Solicitor should have less
involvement in statutory wills proceedings.
3.112 Some consultees thought that the Official Solicitor’s role as the testator’s litigation
friend should be more limited in particular circumstances. For example, Penningtons
Manches LLP 380thought that the Official Solicitor’s involvement could be limited where
the proceedings are non-contentious, an independent solicitor and expert have met
the testator to ascertain their capacity and wishes and feelings, and there are no
extraordinary circumstances.
3.113 However, we think that the role of litigation friend remains important, even where the
proceedings are simple or non-contentious. By ascertaining the testator’s wishes and
feelings, the litigation friend helps the court to reach a decision which is in the
testator’s best interests. The litigation friend therefore plays an important role in
safeguarding the fundamental principles of the MCA and ensuring that the court
upholds the testator’s best interests when formulating their statutory will. If the court
thinks that the testator needs to be joined as a party to the proceedings such that a
litigation friend is necessary, it is important that the litigation friend can fulfil their
function properly. Therefore, we do not think it is appropriate for there to be limits on
the Official Solicitor’s ability to perform her role as a litigation friend.
3.114 Other consultees thought that the court should invite the Official Solicitor to act as the
testator’s litigation friend less frequently. For example, Denzil Lush thought that she
should not be invited to act as litigation friend where her involvement would cause
delays and increase costs without attendant benefit. He thought that if the person had
a professional deputy, 381they could be invited to act as litigation friend instead.
Another consultee suggested that Court of Protection visitors could act as litigation
friends. Other consultees proposed the establishment of schemes to provide
alternative sources of representation; for example, the Law Society suggested the
establishment of a specialist panel of practitioners, akin to the scheme of accredited
legal representatives, who fulfil a similar role to litigation friends in personal welfare
proceedings.
3.115 As a matter of practice, the court normally invites the Official Solicitor to act as
litigation friend in statutory wills proceedings, and the Official Solicitor normally
consents, provided her criteria are met.382 The Official Solicitor’s consultation
response explained that she is involved in almost all statutory wills applications
brought before the Court of Protection. 383But the court could invite another person to
act as a litigation friend under the current rules. 384Similarly, the Official Solicitor could
refuse to consent, as she often does in welfare proceedings, where she is regarded as
the litigation friend of last resort.385
3.116 As the court already has the power to appoint other persons to act as litigation
friends, 386whether it chooses to do so is a matter of practice. Reform of the law itself
is therefore unnecessary.
3.117 We also note the Official Solicitor’s views that her involvement has significant benefits
to the testator, and to the proceedings in general. As she explained in her consultation
response, the regular involvement of the Official Solicitor as the testator’s litigation
friend in statutory wills cases can ensure “a great degree of consistency” in the
approach taken, particularly in relation to assessments of best interests, and she also
has an important role in helping parties reach an agreement. In recent discussions,
the Official Solicitor also noted that her involvement provides expertise in relation to
the assessment of the person’s best interests and the statutory wills process, as well
as a litigation friend who is independent. The court’s view in this regard was
summarised in Re D as follows:
In statutory will proceedings, even when there is a professional deputy, the court's
usual practice is to appoint the Official Solicitor to act as litigation friend because:
(a) [s]he can conduct the proceedings fairly and competently;
(b) [s]he has no interests adverse to P's interests;
(c) [s]he has considerable experience and expertise in relation to the
discharge of [her] role as litigation friend in cases of this kind; and
(d) as the Official Solicitor to the Senior Courts, [she] has a broader remit as
advocate to those courts, to provide them with advice and assistance,
including guidance on the impact of any decision a judge may make.387
3.118 We also note the Official Solicitor’s views that delay is often caused by the quality of
the application papers filed in support of statutory wills proceedings. Issues which are
commonly overlooked by applicants include (1) the need to serve the necessary
respondents;388 (2) the requirement for evidence that focuses on the factors detailed
in section 4 of the MCA; and (3) the potential appointment of litigation friends for other
respondents lacking litigation capacity. When such issues are not addressed in the
initial application papers, the Official Solicitor must make requests for further
information, for service to be made, or for suitable litigation friends to be identified.
This causes delay. As the Official Solicitor suggested, some of these issues could
perhaps be addressed by better guidance to practitioners about statutory wills
applications.
3.119 We therefore do not consider that we should recommend the Official Solicitor should
act as litigation friend in statutory wills cases less frequently. However, we do think
that practical approaches should be considered to reduce the time and costs of
statutory wills proceedings, which might include more (and more accessible) guidance
being given about the statutory will process and the information required for it.
3.120 We do not consider that there is a need to reform the costs rules so that the court is
more willing to depart from the general rule that the costs of statutory wills
proceedings are borne by the testator.389 The court already has the power to do this “if
the circumstances so justify”390 and we understand this power operates well in
practice.391
3.121 However, we note a possible lacuna in the costs rules which arises where the testator
dies during the statutory will proceedings, an issue which was raised by the Charity
Law Association Working Party in their consultation response. The court can make an
order for costs after the testator dies for costs incurred during the testator’s lifetime,392
but the court lacks jurisdiction to make an order for costs which are incurred after the
testator’s death. Further costs may be incurred in finalising the court’s involvement in
the testator’s affairs but, as the court’s jurisdiction ends at the testator’s death,393
parties can only recoup these costs by agreement. It is arguable that the parties could
recoup these costs from the County Court or High Court in subsequent contentious
probate proceedings, as these courts have the jurisdiction to order the costs “of and
incidental to” proceedings, 394but this point is untested.
3.122 Ultimately, we do not consider that it is within the scope of our project to address this
problem. Although it arises in the context of statutory wills, the costs rules are general
ones, governing costs orders that can be made in relation to all proceedings under the
MCA, not only statutory will applications. It would be inconsistent to address the issue
of costs arising after a testator’s death only in the context of statutory wills, and not in
other cases before the Court of Protection where the person dies.
3.123 Some consultees suggested the introduction of mediation before statutory wills
proceedings commence in order to reduce the costs and length of proceedings.
However, we are uncertain of the value of mediation in statutory wills proceedings,
which are ultimately concerned with the testator’s best interests. The parties may
mediate to try to agree what is in the testator’s best interests, but we think that the
court would still need to be involved to ensure that any final agreement was in fact in
the testator’s best interests.
3.124 Finally, consultees raised the possibility of creating statutory wills after the testator has
died. DWF LLP 395thought that enabling the court to make statutory wills after the
testator’s death would also be an alternative to increasing the court’s resources so
that it could make statutory wills more quickly.
3.125 In the Consultation Paper, we had noted that allowing statutory wills after the
testator’s death could potentially cause overlap between statutory wills proceedings
and claims under the Inheritance (Provision for Family and Dependants) Act 1975.
This was the concern of the Victorian Law Reform Commission in Australia, which
ultimately rejected the possibility of statutory wills after the testator’s death for this
reason.396 However, we accept that some prospective beneficiaries would be ineligible
to claim under the 1975 Act, and so remedies under it are not a complete answer to
the calls for this extension to the court’s jurisdiction.
3.126 Nevertheless, we are still of the view that it would be inappropriate to allow statutory
wills to be made after the testator’s death. Statutory wills are for those who would be
able to make their own will but for their lack of capacity. Allowing a will to be made
after the testator has died would fundamentally change the nature of statutory wills.
Furthermore, it would treat statutory wills differently to other wills. Currently, if a
testator dies before their will is concluded (whether statutory or not), their estate is
distributed under the intestacy rules (or any pre-existing valid will). Under this
extension to the court’s jurisdiction, the estate of a testator with a post-death statutory
will would be distributed in accordance with the provisions in the statutory will, whilst
the estate of a testator who died before completing making their own will would be
distributed in line with the intestacy rules (or their pre-existing valid will). We do not
think that there would be any justification for these different outcomes.
3.127 We also question how this extension of the Court of Protection’s jurisdiction would
operate in practice. If it were possible to complete a statutory will after the testator’s
death, this would lead to disputes over how far the testator was through the
proceedings before they died. We think it is clearer and more certain for the court’s
jurisdiction to end at the testator’s death, as it does now.
3.128 We note that as a result of our recommendations there will be one new difference
between cases where a testator dies in the process of making their own will, and
where a person dies during the process of a statutory will being made for them. This
will arise as a result of our recommendation to introduce a dispensing power.397
Where a person dies in the process of making their own will, before they have
complied with the formality requirements for the will to be valid, it is possible that the
dispensing power will apply to deem the formality requirements to be met (where there
is a record which the court is satisfied demonstrates the testator’s settled
testamentary intentions). It is our view, however, that the dispensing power should not
be available in cases of draft or incomplete statutory wills.
3.129 First, when the court has not yet authorised a statutory will to be made, we do not
think any draft statutory will can be considered as simply not formally valid. The rules
governing the execution of statutory wills are set in out the MCA. After being executed
by the person authorised by the Court of Protection to sign on the testator’s behalf and
the two witnesses, the court must then seal the will.398 Because of the involvement of
the court, we understand that statutory wills do not fail due to technical non-
compliance. 399Allowing the dispensing power to operate on a statutory will before the
Court of Protection has authorised the will to be executed on behalf of a testator is not
a matter of formalities, but of the statutory authority to make a will on another person’s
behalf. We do not think this can be dispensed with by a dispensing power: it would
amount to dispensing with the requirement for testamentary capacity, that is, the
requirement for substantive validity, not formal validity of the will.
3.130 Second, the content of a statutory will is determined based on an assessment of the
testator’s best interests, whereas the dispensing power will operate to give effect to
the testator’s settled testamentary intentions. While one factor in the best interests test
- and the factor that we think should have priority - is the testator’s wishes and
feelings, these are not the same as settled testamentary intentions. 400Therefore, we
think that it would be inappropriate for the dispensing power to apply to draft statutory
wills, as this would change the nature of the dispensing power.
3.131 We therefore do not make any recommendations to change the law in relation to the
procedure governing statutory wills, and moreover our recommended dispensing
power will not be able to be used to make a statutory will which has not yet been
authorised by the court as valid.
4.1 In this chapter, we consider supported will-making, and in particular, the arguments for
and against introducing a formal scheme of supported will-making. Such a scheme
would benefit testators who could have capacity to make a will if they were provided
with support to do so. It would complement the ability of the Court of Protection to
make a statutory will for people who lack testamentary capacity under the Mental
Capacity Act 2005 (“MCA”). A statutory will would continue to be the appropriate
option for people who would lack capacity even with support.
4.2 Our considerations are based on developments in supported decision-making in other
legal contexts, as well as arguments as to what is necessary for the law to be
compatible with the UN Convention on the Rights of Persons with Disabilities
(“UNCRPD”). We also consider the practicalities of a potential supported will-making
scheme.
4.3 In the end, we do not recommend the introduction of a formal supported will-making
scheme. Although we agree that support is necessary, we do not think that there
should be a specific legal framework of support only for wills. In adopting the MCA test
for testamentary capacity, the statutory requirement for support in the MCA will apply
to the wills context. 401Furthermore, we endorse the recommendation from the Mental
Capacity and Deprivation of Liberty Report for a general supported decision-making
scheme. 402It is our view that this general scheme should apply to will-making.
Accordingly, we outline our initial thoughts about the protections that we think will
need to be considered for the scheme to apply to will-making specifically.
4.4 Article 12(3) of the UNCRPD says that state parties must take “appropriate measures
to provide access by persons with disabilities to the support they may require in
exercising their legal capacity”.
4.5 In General Comment No 1, the Committee on the Rights of Persons with Disabilities
(“the Committee”) interpreted Article 12(3) as imposing a requirement on state parties
to support people with disabilities to exercise their legal capacity. 403The Committee
added that state parties should replace substituted decision-making regimes with
supported decision-making, which respects the autonomy of people with disabilities
and their will and preferences. 404The General Comment is not legally binding;405
however the Committee’s interpretation of Article 12 is influential, as the Committee
monitors state parties’ compliance with the UNCRPD.406
4.6 In line with Article 12(3), we define supported decision-making as supporting people
with disabilities to have and exercise legal capacity to make their own decisions.407 As
we noted in the Consultation Paper, this definition is narrower than the definition
adopted by the Committee, who envisaged supported decision-making as also
encompassing decision-making for the person, in line with their will and preferences,
where they are unable to make a decision for themselves.408 Where people are unable
to make a will for themselves because they lack capacity, the statutory wills regime
will apply, a regime which we discuss in Chapter 3.
4.7 England and Wales currently provide for supported decision-making through section
1(3) of the MCA, 409and through entitlements to independent advocacy, whether
through independent mental capacity advocates (“IMCAs”) or relevant person’s
representatives in the MCA, independent advocates in the Care Act 2014, or
independent mental health advocates in the Mental Health Act 1983.
4.8 Most relevant for our purposes are the provisions in the MCA for supported decision-
making.
4.9 Section 1(3) of the MCA provides that “a person is not to be treated as unable to make
a decision unless all practicable steps to help him to do so have been taken without
success”. This principle has been interpreted as providing for a form of supported
decision-making,410 as it requires that people with disabilities receive support in making
decisions before they are found to lack capacity.
4.10 The support provided under section 1(3) should be tailored to each person’s
circumstances and needs. Section 3(2) requires that a person should not be regarded
as unable to understand the information relevant to a decision if they can “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)”. Similarly, the MCA Code of
Practice states that the appropriate steps under section 1(3) will depend on a person’s
circumstances.411
4.11 The MCA Code of Practice also includes some guidance on the support which should
be provided to comply with section 1(3). The Code recommends:
(1) providing relevant information to the person, such as the reasonably
foreseeable consequences of the decision, its effects, and the risks and
benefits of deciding one way or another;
(2) trying all possible forms of communication to help the person decide for
themselves, for example using simple language, breaking information down,
and speaking to them at different times or by different people;
(3) considering whether the person has specific communication or cognitive needs
and if necessary, using communication aids, mechanical devices or
professionals to help the person with communication; and
(4) helping the person to feel more at ease, for example by speaking to them about
the decision in a particular location or at a particular time, or in the presence of
an individual whom they trust.412
4.12 In contrast, the common law governing wills imposes no requirement to support a
testator to have testamentary capacity. The Banks v Goodfellow413 test is most often
applied retrospectively, after the testator has died, to determine whether they had
capacity at the time they made their will. However, the Banks test also governs the
assessment a solicitor or will writer makes when drafting the will, to ensure that the
testator has capacity to engage the solicitor or will writer and to make a will. In this
context, there is nothing in the law requiring support to be provided to the testator to
enable them to have capacity, but there is nothing preventing it either.
4.13 In the Consultation Paper, we considered whether the law governing testamentary
capacity in England and Wales is compatible with the UNCRPD in relation to
supported will-making.
4.14 We outlined that under the common law test for testamentary capacity in Banks v
Goodfellow, there is no requirement for or promotion of supported will-making.
However, we noted that Banks allows supported will-making and explained the
approaches that we had been told about by stakeholders, which showed that a high
level of support by solicitors is possible. For example, in one case where the testator
struggled with understanding the extent and value of their estate, the solicitor created
a board showing all the people the testator wished to benefit. The testator was given
100 counters to place on the board to indicate the proportion of their estate that each
person should receive. The solicitor then made pie charts, each showing different
options for the division of the estate, for the testator to choose between.414
4.15 We also assessed the position under the MCA. We explained that the MCA requires
supported decision-making, but even this more empowering approach might be
insufficient to promote the aims of the UNCRPD. We noted concerns that there was
inadequate guidance in relation to supported decision-making, and that it was unclear
who is required to provide support. We also noted findings that supported decision-
making was not well entrenched, and that the principles of the MCA were not working
well in practice.415
4.16 We provisionally concluded that if Banks v Goodfellow remains the test governing
testamentary capacity, the UNCRPD might require further support be given to people
to have capacity to make a will. If instead the MCA test is adopted, we thought that
consideration would be necessary of how the MCA’s requirements should be adapted
to supported will-making, and how far this would satisfy the UNCRPD.416
4.17 We also considered what a supported will-making scheme might look like.
4.18 To frame our considerations, we explained the Law Commission’s recommendation in
the Mental Capacity and Deprivation of Liberty Report. In that report, we
recommended the introduction of an enabling power which would allow the creation of
a formal supporter scheme to provide individuals with support to exercise their legal
capacity. A formal supporter scheme would enable a person to appoint someone on
an ongoing basis to help them to make and express the decisions with which they
wanted support. Appointing a supporter would prevent the MCA from applying to the
person in regard to their supported decisions because, with the support, the person
would have capacity to make those decisions. It would further the aims of the
UNCRPD and enable the MCA to function as it was intended.417
4.19 In terms of the supporter role in a supported will-making scheme, in the Consultation
Paper we tentatively favoured professionals fulfilling this role. We noted that a
requirement for supporters to be professionals would impose costs on the testator.
However, we thought there was an overriding need to prevent the risk of undue
influence and a conflict of interest arising from the supporter having an interest under
the will as a potential beneficiary. Furthermore, regardless of whether professionals or
non-professionals could act as supporters, we noted that any scheme for supported
will-making could impose certain criteria on supporters (such as that they have
relevant experience and are of good character).418
4.20 We thought that a person should be able to appoint their own supporter; however, if
they could, we thought that safeguards would be needed, particularly in the case of
appointing non-professional supporters, to prevent undue influence.419 We also noted
that it would be necessary to have guidance on how supporters should provide
support to testators to enable them to exercise their testamentary capacity.420
4.21 In terms of safeguards, we highlighted the need to prevent undue influence. We
considered a rule that a supporter (or their spouse, civil partner, or cohabitant) would
be unable to benefit under the testator’s will. We also considered the possibility of
imposing a fiduciary relationship between the supporter and the person they are
supporting. We noted that some jurisdictions impose a fiduciary relationship in this
context, and that donees of Lasting Powers of Attorney (“LPAs”) and deputies under
the MCA are in a fiduciary relationship with donors and protected persons
respectively.421
4.22 Finally, we considered whether a supported will-making scheme should be laid out in
legislation, regulations, or guidance. We thought that while informal guidance would
be helpful, on its own it would not create a scheme. As we thought this approach was
unlikely to meet the requirements of the UNCRPD, we did not favour it. Instead, we
considered a scheme that would be enabled in legislation with the detail provided in
regulations or guidance.
4.23 We concluded that the Law Commission’s recommendation for a regulation-making
power for a formal supporter scheme in the Mental Capacity and Deprivation of Liberty
project 422was wide enough to allow support to be provided in the wills context. We
also thought that it should be possible for regulations made under that power to make
different provisions about supporters depending on the context in which they were
providing support, for example, care and treatment decisions versus making a will.423
4.24 We did not, therefore, make any provisional proposals in relation to a scheme for
supported will-making. Instead, we asked an open question, to gather consultees’
views. We asked consultees if they thought a supported will-making scheme would be
practical or desirable, and asked them about how such a scheme would work. In
particular, we asked who should be able to act as a supporter and how they should be
appointed; what the objectives of the supporter role should be; how guidance should
be provided to supporters; and what safeguards would be necessary.424
4.25 In response to our question, only a minority of the consultees who responded thought
that a supported will-making scheme was practical or desirable.425 Charities,
academics, and non-legal professionals were largely in favour of a scheme. The Law
Society, STEP, the Chancery Bar Association, the Charity Law Association Working
Party, CILEx, and the Society of Will Writers and Estate Planning Practitioners were
similarly in favour. Most individual solicitors, however, as well as the Bar Council, were
not.
4.26 Some consultees commented on the support provided under the MCA at the time of
the Consultation Paper. In particular, Professor Rosie Harding explained that the
Everyday Decisions Project found that people with learning disabilities and brain
injuries were well supported in making everyday choices but not in relation to more
difficult decisions.
4.27 Some consultees in favour of a scheme thought that it would promote testamentary
freedom or autonomy, or that it would empower testators. Others said it would make
will-making more accessible to people with learning disabilities or other vulnerabilities.
Several consultees thought that a scheme would reflect the support principle in the
MCA or commented that such support would be required to implement the MCA in the
wills context.
4.28 Several consultees thought that a supported will-making scheme would further
compliance with the UNCRPD. Indeed, Denzil Lush426 said it was “non-negotiable in
order to demonstrate the United Kingdom’s commitment to its obligations” under the
UNCRPD. Age UK said that a scheme was “long overdue”. Dr Lucy Series,427 with
whose response Alex Ruck Keene KC (Hon)428 agreed, thought that our consideration
of supported decision-making was “encouraging”.
4.29 The Chancery Bar Association thought that practical support is already provided by
will makers but agreed that “more could and should be done in order to provide
guidance and a more structured framework for such assistance”. Similarly, an
independent trust consultant429 said that a supported will-making scheme would
produce consistency among the practitioners who already effectively offer support.
4.30 Some consultees thought that a scheme would save costs for testators as compared
to obtaining a statutory will. Penningtons Manches LLP 430further offered that
supporting a person to make a will would result in them being able to keep their
personal information private; whereas in a statutory will application, “anybody who is
adversely or materially affected by the proposed will is served with details of the
testator’s estate”.
4.31 Many consultees offering reasons against a scheme essentially argued that it was
unnecessary because support is already provided by professionals.
4.32 Some added that a formal scheme would be complex, burdensome and expensive.
For example, Withers LLP 431thought that “a supported will-making scheme introduces
a significant layer of additional bureaucracy to meet a relatively narrow set of
circumstances”. Some consultees also thought a scheme would be impractical.
Thomson Snell & Passmore LLP 432thought the scheme would be difficult to monitor,
suggesting it would add to the concerns which already exist in relation to unregulated
will writers. Some consultees raised concerns about funding. For example, a solicitor433
noted that the costs of will-making would increase unless legal aid was made
available.
4.33 Several consultees thought that adopting the MCA framework would be sufficient in
terms of providing support, suggesting that a scheme would not be necessary. For
example, Mills & Reeve LLP434 said that adopting the MCA would ensure that
decisions about capacity were context specific. Liverpool Law Society’s Non
Contentious Business Committee also thought that adopting the MCA test would
mean the solicitor or will writer would provide practical support.
4.34 Consultees also worried that a formal supporter scheme would lead to abuse, citing
concerns about undue influence or of family members seeking to have a supported
will made for a person who lacked capacity. The Sole Practitioner Group also thought
that even if supporters could not directly benefit from the will, “they could engineer the
will in such a way that those associated with them would do so”.
4.35 Some consultees more generally raised concerns with non-professionals, who did not
understand the law, providing support. For example, the City of Westminster and
Holborn Law Society expressed concern that some organisations that became
involved in operating a supported will-making scheme might formulate inappropriate
policies about what supported wills should contain.
4.36 Wrigleys Solicitors LLP was concerned that solicitors would end up using a supported
will-making scheme, but that will writers would not, being less likely to spot the cases
where support was needed. STEP (Wales branch) was concerned that will-writing
practitioners would be tasked with supporting testators without adequate remuneration
and would be subjected to allegations of negligence from potential beneficiaries.
LawSkills Ltd also suggested that people who were not beneficiaries under the will
might be able to claim against the supporter, by arguing that the testator lacked
capacity. It asked whether we had consulted the professional indemnity insurance
market about the cost of cover against negligence for a regulated sector in relation to
supported decision-making.
4.37 Similarly, a few consultees thought that a scheme could increase the likelihood of
litigation about the testator’s capacity. Hugh James 435thought that “the minutiae of the
actions” of the supporter would be scrutinised.
4.38 Several consultees who were against a supported will-making scheme thought that a
statutory will was the appropriate route in these cases, as it provides sufficient
safeguards against abuse.
4.39 Consultees offered thoughts on the specific details of who could act as a supporter
and of the rules or guidance that would apply to them. However, many consultees
were not entirely settled in their views, with some offering preferred approaches or
thoughts but also identifying drawbacks or suggesting that further consideration or
consultation would be necessary.
4.40 Suggestions from consultees as to who should be able to act as a supporter varied.
4.41 Many consultees suggested that supporters should be limited to professionals, albeit
with variation as to what it means to be a “professional”. Some thought it should be
limited to certain existing types of professional, and in some cases suggested
additional accreditations for providing support. These consultees variously said that
supporters should be limited to legal or other professionals involved in will drafting,436
medical professionals, and/or professionals or others working in relation to providing
support under existing schemes (such as Care Act advocates, IMCAs, deputies, or
panel deputies). Their reasons for limiting who could act as supporters included: to
prevent undue influence; to ensure training, high standards and accountability of
supporters; to protect the testator’s best interests; and because professionals will
have indemnity insurance.
4.42 Conversely, other consultees thought that non-professionals should be able to act as
supporters. Some suggested that friends or family of the testator should be able to
act. Others thought supporters should be limited to people who, although not
professionals, are independent or have experience or have received training or
accreditation. For example, the Law Society did not think that a supporter scheme
could prevent family and friends from offering informal support but agreed with only
“non-professionals who are sufficiently independent, experienced in will-making and
skilled in supporting vulnerable individuals” being capable of being recognised as
supporters under a scheme.
4.43 A smaller number of consultees were in favour of a broader category of people being
permitted to act as supporters, including friends and family of the testator, or anyone
chosen by the testator. Dr Lucy Series (with whose response Alex Ruck Keene KC437
agreed) thought we gave insufficient consideration to the testator being able to
choose their own supporter. As a result, she argued that our proposals “appear to be
based on a misreading of General Comment No 1, and [risk] going against the ethos
of supported decision making that underpins Article 12 CRPD”. She thought that
inherent in our view was distrust of families and non-professional supporters.
4.44 Consultees who supported anyone being able to act as a supporter essentially did so
because of the importance they placed on respecting the testator’s right to decide for
themselves who should give them support. Dr Lucy Series, with whose response Alex
Ruck Keene KC438 agreed, argued that it would be discriminatory, as well as contrary
to the UNCRPD, to deny disabled people the ability to choose a trusted family
member or friend to act as their supporter. She also thought that it would be
disproportionate as a means to prevent undue influence. The Royal College of
Psychiatrists agreed that “the wishes and preferences of the testator to choose what
form of support they have wherever possible should be respected”.
4.45 Consultees made various suggestions of criteria to determine a person’s suitability to
act as a supporter: they included accreditation, regulation, qualifications, experience
or formal declarations of fitness. The criteria that consultees suggested were often in
addition to limitations on who could act as a supporter, resting on a presumption that
only some people would be eligible. Some consultees proposed different requirements
for professional and non-professional supporters, with some suggesting criteria that
would only apply to professional supporters with no criteria applying to non-
professional supporters.
4.46 Some consultees, arguing that the testator’s choice of supporter should be respected,
did not offer any criteria that supporters should have to meet. However, two solicitors’
firms 439suggested that any supporter should have to sign a standard statement or
declaration.
4.47 In relation to the appointment of supporters, consultees suggested a range of ways a
supporter should be appointed, often reflecting the differing views as to who might be
eligible to act as a supporter. Suggestions ranged from appointment by a committee of
representatives of legal and medical bodies through to simply being chosen by the
testator.
4.48 A few consultees thought that the objectives of the supporter role should be to provide
the testator with support so that they have capacity, or to support the testator to
understand the process of making a will and what they need to decide to give
instructions. Several consultees suggested that the objective should go further to
provide the person with the support necessary to exercise their testamentary capacity,
or to enable them to make their own testamentary decisions or a will in accordance
with their wishes. Among them, the Law Society specifically recommended that the
objective should mirror the wording of Article 12(3) of the UNCRPD, to “take
appropriate measures to provide access by persons with disabilities to the support
they may require in exercising their legal capacity”.
4.49 Similarly, several consultees said that an objective should be to identify or help to
identify the testator’s wishes about how their assets should be disposed of or to make
a will reflecting their choices. Two consultees said that the objectives should be to
“understand how the individual communicates” and communicate the testator’s wishes
to the solicitor or will writer.
4.50 Some consultees thought that an objective should also be to identify if (with support)
the testator could have capacity.
4.51 Many consultees were in favour of guidance being provided in a code of practice or
the MCA Code of Practice. An independent trust consultant440 suggested the code for
supported will-making might need to be separate from the code on testamentary
capacity (which we discuss in Chapter 2). Conversely, the Law Society thought it
could be within any code on testamentary capacity.
4.52 One consultee 441said the code should be issued through secondary legislation; the
Chancery Bar Association and CILEx also thought that detail should be outlined in
regulations rather than a code. Several consultees suggested that an enabling power,
the framework for the scheme, or the purpose of the scheme and a requirement for a
code, should be provided for in legislation.
4.53 Some consultees commented on what the guidance should cover. Suggestions
included to take whatever practical steps were necessary to communicate with the
testator and to demonstrate their capacity; how to give support and how it should be
recorded; to consider undue influence; and to explain surprising provisions or
omissions in the will and the consequences of making a will.
4.54 Many consultees who agreed with a scheme cautioned about the need for appropriate
safeguards. For example, the Alzheimer’s Society noted that people with dementia
can be particularly vulnerable, so safeguards must protect them while also promoting
their autonomy.
4.55 A significant number of consultees agreed that a person acting as a supporter should
be prevented from benefiting under the will. Consultees reasoned that this safeguard
was necessary to prevent undue influence; to ensure that the supporter plays a wholly
independent role; to avoid conflicts of interest; to accord with the law applying to
witnesses; and to prevent legal challenge.
4.56 Some consultees additionally thought that a supporter’s spouse, civil partner or
cohabitant should also be barred from benefiting under the will of the supported
person. Several consultees supported a wider exclusion applying to the supporter’s
family or immediate family. Martyn Frost, 442Stephen Lawson443 and Professor Robin
Jacoby, responding together, also thought that charities the supporter was associated
with should be prevented from benefiting under the will. A solicitor, 444although
agreeing that supporters should not be beneficiaries, thought that this would be likely
to mean that many people who do not have support from outside their families would
be unable to have a supporter with whom they felt comfortable.
4.57 Two consultees expressly stated that supporters should not be prevented from
benefiting under the will. In particular, the Royal College of Psychiatrists thought that
such a rule would risk “preventing [the person] from having the above benefits of
support from a person that they know and trust”; the College instead suggested a role
for assessments by a third party.
4.58 Similarly, Dr Lucy Series, with whose response Alex Ruck Keene KC 445agreed,
argued for professionals to play a supervisory role as a safeguard. She thought that
this role would include an assessment of the individual’s mental capacity to make a
will, as well as provision for the professional to consider the possibility of undue
influence and provide a source of independent advice. Alternatively, she suggested
that the professional could act in a facilitative role, helping the testator to choose a
supporter, establishing terms of support, offering guidance to the supporter, and
helping to solve problems that arise.
4.59 The Alzheimer’s Society, although not expressing a concluded view on the point, said
a suggestion to exclude supporters from benefiting under a will was circular, because
“if the person is being supported in decision-making the decision is not yet made”.
4.60 Some consultees thought that a fiduciary relationship should be created between the
supporter and testator. Hugh James said imposing a fiduciary relationship was
necessary because of the testator’s vulnerability. A solicitor 446noted that the supporter
is in a position of trust; another solicitor 447compared the relationship with solicitors and
their clients, and donees and donors of LPAs. CILEx preferred imposing a fiduciary
duty rather than preventing a supporter from benefiting: its members thought that
doing so would prevent supporters from taking advantage of their position and would
prevent people from “being a supporter in cases where personal interests would
conflict with [their] duties as a supporter”.
4.61 Some consultees thought a fiduciary relationship would arise in any event. Lord
Walker of Gestingthorpe 448commented that, “the role of supporter, however defined,
would very probably give rise to a fiduciary relationship and the possibility of undue
influence”. One barrister449 agreed that it was inherently a fiduciary relationship;
however, she worried that “the mere fact of a fiduciary relationship” does not stop
abuse, as sums can be irrecoverable if the fiduciary lacks assets or is uninsured,
citing the example of deputies and donees of LPAs. Some consultees thought a
fiduciary relationship would only arise if the supporter was a solicitor or legal
professional.
4.62 Only a few consultees did not seem to agree with a fiduciary relationship being
created.
4.63 Considering our proposals in relation to undue influence (discussed in Chapter 9
below), some consultees thought a presumption of influence would or should arise
where a supporter is a beneficiary under a will, and another thought it should be taken
into account in assessing allegations of undue influence.
4.64 Since we published the Consultation Paper, academics have continued to express
concerns that the MCA does not comply with Article 12(3) of the UNCRPD because
disabled people receive insufficient support in exercising their legal capacity.
4.65 For example, in a 2018 article, Professor Rosie Harding and Dr Ezgi Ta§cioglu
considered how legally relevant decisions are made and supported outside the Court
of Protection. Their research was part of the Everyday Decisions Project, which
involved interviewing disabled people, their supporters, and social care professionals.
They found that the MCA has created a culture of support for routine decisions, such
as what to eat, wear or do. 450For routine decisions like this, social care professionals
presume that the disabled person has capacity, tailor their communication style to the
disabled person, and consider the person’s wishes and preferences to help them
make the decision.451
4.66 However, the more complex the decision, the less support is available. Professor
Harding and Dr Ta§cioglu found that there is sometimes insufficient support to help
disabled people make life choices on matters like accommodation and work, and
substitute decision-makers often make the complex decisions which involve
professionals, such as in relation to wills, finances and healthcare. 452The authors
argue that this flows from the MCA’s decision-specific approach to legal capacity
encouraging substituted decision-making for matters which are more difficult for the
disabled person and their supporters to understand.453 Furthermore, the current
conception of support focuses on communication, but social care professionals often
lack the expertise to simplify and communicate the information needed for a disabled
person to make a complex decision.454 Information is also not always available in an
accessible format.
4.67 Professor Harding and Dr Ta§cioglu argue that the reliance on substituted decision-
making and the lack of support for complex decisions violates Article 12 of the
UNCRPD. They recommend removing the decision-specific approach to legal capacity
and adopting what they described as a holistic approach to support. 455A holistic
approach would entail offering more training to social care professionals and making
information about complex decisions more accessible. This approach would require
structural changes to the mechanisms through which disabled people exercise their
legal capacity, like the healthcare and welfare systems, to ensure that society
supports disabled people across all spheres of their lives.
4.68 Developments in relation to the MCA have also been under way as a result of the Law
Commission’s recommendations in the Mental Capacity and Deprivation of Liberty
Report. 456Government announced its intention to make amendments to the MCA
framework. Most concretely, it said it intends to replace the deprivation of liberty
safeguards with the liberty protection safeguards, in accordance with our
recommendations. The Mental Capacity (Amendment) Act 2019 adopts the liberty
protection safeguards and changes to the MCA’s advocacy framework for the
purposes of the liberty protection safeguards. 457However, in 2023 Government
decided to delay implementation of the liberty protection safeguards “beyond the life of
[the then current] Parliament”.458
4.69 Government has also accepted in principle the recommendation we made in the
Mental Capacity and Deprivation of Liberty Report for a supporter scheme, saying:
We are committed to the principle of supported decision-making and this principle is
enshrined in the Mental Capacity Act. We will consider approaches to supported
decision-making as part of our response to the UN Convention on the Rights of
Persons with Disabilities. However, it is not clear at this stage whether a new
regulatory scheme is an appropriate response for this and we will need to look into
this issue in more detail.459
4.70 In anticipation of implementing the scheme for the liberty protection safeguards,
Government consulted on a draft updated MCA Code of Practice. In addition to
providing guidance in relation to the new liberty protection safeguards, the draft
updates guidance in the Code generally, to reflect developments in ways of working
and best practice for those acting under the MCA. As Government’s consultation
document on the draft Code explains, the draft Code updates guidance about helping
people to make their own decisions:
Reflecting the United Nations Convention on the Rights of Persons with Disabilities
principles of supported decision-making, we have strengthened wording to place
more emphasis on supported decision-making and empowering people to make
their own decisions, while remaining within the ambit of the MCA ... .
We have added text prompting professionals to be aware of the risk of coercion or
undue influence from someone who is supporting a person either to make a decision
or to express their views as part of the process of best interests decision-
making . .460
4.71 To assist and inform our project, Professor Rosie Harding, Dr Ezgi Ta§cioglu and
Magdalena Furgalska conducted empirical research into the experience of
intellectually disabled people when making wills, based on the Everyday Decisions
Project and a follow-up study specific to will-making. Their final report, Supported Will-
Making: A Socio-Legal Study of Experiences, Values, and Potential in Supporting
Testamentary Capacity, was published in 2019. 461Their research reveals “a gap in
access to appropriate support to make a will for intellectually disabled people of
modest means”.462
4.72 Given that this research was undertaken specifically to assist and inform this aspect of
our work, we summarise it in detail here.
4.73 In the report, Professor Rosie Harding, Dr Ezgi Ta§cioglu and Magdalena Furgalska
explained that intellectually disabled people must be able to make their own wills. In
particular, they illustrated that the intestacy rules are based on assumptions about life
events, family, and support networks that might reflect the lives and wishes of
intellectually disabled people less often than those of others. Intellectually disabled
people might be more likely to have spent time in residential institutions; less likely to
have spouses or partners; and less likely to have children or, if they do, more likely to
have had their children grow up in foster care or be adopted.463
4.74 The report included two case studies.
(1) Penny has intellectual and physical disabilities. Penny and her husband had
mirror wills, in which each left the entire estate to the other, unless they died
together, in which case the estate would be divided equally between their five
children. Three of the children are Penny’s stepchildren, from her husband’s
previous relationship. Two of the children, daughters of Penny and her
husband, have intellectual disabilities. After her husband died and Penny
inherited his estate, she made a new will to leave her entire estate to her two
disabled daughters. Penny was supported in making the will by her stepson, as
well as a solicitor and an independent advocate.464
(2) Gareth has intellectual disabilities. He has a poor relationship with his family.
He had previously made a will, through a solicitor, with the support of his
support worker. The will gave all his assets to the support worker, as Gareth
had incorrectly understood that he had to leave his entire estate to a sole “next
of kin”. Later, after the relationship with his support worker broke down, his
personal assistant found the will. Gareth was upset about it, and his personal
assistant supported him in making a new one. In his new will, Gareth left his
entire estate to a charity.465
4.75 These case studies illustrate the variety of circumstances and needs of intellectually
disabled people in the context of will-making:
Penny’s experience highlights the need to review wills regularly to account for
changes in circumstances. Her story also highlights a theme, found across these
data, that disability sometimes interrupts normative patterns of succession, with a
preference for leaving greater provision to disabled children. This disability
difference sometimes creates discord between family members. Penny’s story
further highlights the need for support from a range of different sources, including
legal professionals, family members and advocates to allow disabled individuals to
navigate this complex area of law and social relationships, and to have access to a
broad range of information.
The importance of appropriate safeguards when making a will cannot be
underestimated. Through Gareth’s story we emphasise the need for appropriate and
effective safeguards to protect vulnerable testators from abuse. This has proven
especially challenging for testators who do not have good relationships with their
families. We found that safeguarding and ensuring the right to legal capacity is a
major challenge for developing CRPD compliant supported decision-making
frameworks. Gareth’s story also draws attention to the importance of accessible
information in helping disabled people to protect themselves from financial abuse,
manipulation or coercion, and the need for solicitors to be able to communicate with
disabled people. Gareth’s story highlights the failings of the current law in this
regard, and offers an important rationale for change.466
4.76 The authors thought that including more substantive discussion of supported decision-
making and supported will-making in the MCA Code of Practice would be a positive
change.467 The authors also argued for the need for law reform. They favoured
creating a formal nominated supporter scheme, which would apply to decision-making
generally, rather than applying only to will-making.468
4.77 Under a formal nominated supporter scheme, the authors argued that testators must
be free to choose who should be able to support them. They explained that family and
friends will be the obvious candidates in many cases, and the only ones who can offer
meaningful support in some. They also explained that intellectually disabled people
may often be particularly reliant for support on those with whom they already have a
trusted relationship.
4.78 The authors stated that safeguards against undue influence are “extremely important”,
but they “should not come at the expense of testamentary freedom, nor should
safeguards operate in discriminatory ways”. 469The authors endorsed our provisional
proposals to create a statutory doctrine of testamentary undue influence, and to clarify
the requirement of knowledge and approval, topics we consider in Chapter 9 below.470
In particular, in their view, a statutory presumption of testamentary undue influence is
“essential”, with all of their policy recommendations relying on it being introduced.471
4.79 In relation to any presumption of undue influence, the authors favoured including will-
making supporters within the class of beneficiaries in whom there would be an
irrebuttable presumption that the testator reposed trust and confidence. Because
testators are particularly likely to want to benefit the sort of people who the authors
envisage acting as supporters, the authors were not enthusiastic about the idea of
invalidating gifts to will-making supporters, arguing that it would be a disproportionate
curtailment of testamentary freedom.472
4.80 The authors supported the imposition of fiduciary duties on will-making supporters, but
only under the formal nominated supporter scheme that they recommend. Informal
supporters should not, in the authors’ view, have fiduciary duties.
4.81 They recommended, as a primary safeguard, the supervision of nominated supporters
by a public body. The authors suggested extending to nominated supporters the
supervision that applies to deputies by Court of Protection visitors.473
4.82 In their report, the authors also highlighted the need for accessible information and
legal services, including training for solicitors and will writers on effective
communication with people with disabilities, and introducing an accessible information
standard for legal services.474
4.83 We consider this project should endorse entrenching into the law the principle of
support in the context of will-making.
4.84 As we explain in Chapter 2, we recommend that the MCA test be adopted for
testamentary capacity. Adopting the MCA test will mean that the MCA principle of
support - that all practical steps to help a person have capacity must be taken before
they can be found to lack capacity475 - will apply in the wills context. We explain in
Chapter 2 that this should be coupled with guidance in the MCA Code of Practice
about how testators should be supported to have capacity to make a will.476 We think
that putting the requirement to support testators on a statutory footing, coupled with
practical guidance on how to do so, will go some way to ensure that testators are
given support in exercising their testamentary capacity.
4.85 Further, to ensure the availability of support in will-making, we endorse the
recommendation from the Law Commission’s project on Mental Capacity and
Deprivation of Liberty that there should be a power to establish a wider supported
decision-making scheme in relation to personal welfare and property and affairs
decisions, including will-making.
4.86 However, we do not recommend a specific scheme for supported will-making. As we
explain below, we do not think that a formal scheme for supported will-making - which
ensures that testators have meaningful support - can realistically operate on its own,
without reforms to promote supported decision-making more broadly. To ensure
sufficient buy-in and engagement with a scheme by the people whom many testators
are likely to rely on for support, we think a wider supported decision-making regime is
necessary. However, as part of a general supported decision-making scheme, we
think that specific guidance should be provided for the will-making context.
4.87 We consider this approach is both compliant with the UNCRPD - giving primacy to the
UNCRPD’s respect for personal autonomy - and practical, given the current context in
which wills are made and support is provided in England and Wales.
4.88 We consider that testators must be able to choose their own supporters. We think that
requiring otherwise could be contrary to the UNCRPD. As Dr Series argues:
The spirit of “supported decision making” under the [UN]CRPD is based on the
individual’s will and preferences. This means letting them choose how they are
supported.477
On this point we have been particularly persuaded by the research conducted by
Professor Rosie Harding, Dr Ezgi Ta§cioglu and Magdalena Furgalska, as well as the
response of Dr Lucy Series (with whom Alex Ruck Keene KC478 agreed).
4.89 We also believe that testators should be able to choose their own supporter from
among anyone, including their family or friends. We think this approach is necessary
for any provision of supported will-making to result in practical and meaningful support
for intellectually disabled people. As Professor Rosie Harding, Dr Ezgi Ta§cioglu and
Magdalena Furgalska explain, “for many intellectually disabled people, their family will
be their most important source of care, support and advice”.479 Of course, this will not
be universally true: for example, money can create challenges in family relationships,
such as among siblings if a disabled child receives a larger inheritance than their
siblings to reflect their needs.480 No matter whom an intellectually disabled person
relies on for support in their lives, trust is “perhaps the single most important issue” in
terms of a scheme for supported will-making: “this means that disabled testators
should have a choice about who gives them support, and particularly to refuse support
from those they do not trust”.481
4.90 We also consider that preventing non-professionals from acting as supporters would
be difficult to justify on the basis of cost. It is arguable that a supported will-making
system should be made free or basically free, in accordance with the Committee’s
views on Article 12 of the UNCRPD in General Comment No 1. 482However, will-
making is a private endeavour which is funded by the testator. The state does not
contribute to the costs of anyone making a will, just as the state does not contribute to
the costs of anyone conveying or gifting property during their lifetime. Even statutory
wills are paid for by the testator. Requiring professional supporters would impose a
further cost on testators, particularly disabled testators who might lack capacity to
make a will. Any further cost is a further barrier. Allowing family members and other
non-professionals to act as supporters mitigates these difficult issues.
4.91 These conclusions, however, point away from imposing a formal supported will-
making scheme. As we explain below, we struggle to see that there would be any
incentive for supporters - chosen by the testator from among their family, friends, or
carers, or from the charities they rely on or work with - to comply with the
requirements of any formal scheme.
4.92 A scheme could not prevent people from relying on informal support, which family
members and friends might already be providing. Further, it would not be feasible to
require a person to obtain legal authority to provide support to someone they care
about. It would also be difficult to distinguish between support provided informally by
someone the testator trusts, and support provided formally by a supporter under a
scheme. Support comes in a variety of forms: there might not be a clear dividing line
between acts of practical or logistical support, such as helping the testator to make
and travel to appointments, and other acts of support provided by a supporter, such as
explaining information to a testator.
4.93 We have considered ways to encourage compliance with a formal scheme, but we
concluded that no measures would be effective or fair. For example, we considered
whether a rule that a supporter could not benefit under a will could apply only to
informal supporters; someone acting under a formal scheme could be permitted to
benefit under the will of the person they supported. But we agree with the Alzheimer’s
Society that a rule excluding a supporter from benefiting under a will fails to reflect that
the testator’s decision about who should benefit may not necessarily have been made
when they choose their supporter. It may also mean that the testator would only be
able to request support from someone who is not in a close relationship with the
testator in any event. It could therefore operate unfairly, essentially punishing a person
for providing support, or potentially disincentivising them to provide support. We also
think it would be unfair for a rule, intended to act as a safeguard for testators, to
operate in what could be an essentially punitive way. Aside from potential unfairness,
as informal supporters and testators might be unaware of any such rule, the rule could
also fail to act as an incentive to comply with the scheme. We also agree with the
Royal College of Psychiatrists that such a rule, applying selectively or generally, would
prevent the testator from having someone they trust provide them with support, as
such people are also natural beneficiaries. The best supporters in many cases are
likely to be people to whom the testator would want to make gifts under their will,
whether family members or charities.
4.94 Because we cannot identify an effective and fair way to incentivise compliance with a
formal supporter scheme under which non-professionals could act as supporters, we
do not consider that it would be practical to recommend a formal supporter scheme
exclusively in relation to wills.
4.95 However, we do believe that the concept of supported will-making should be
promoted. We are encouraged by the efforts of many solicitors and other will writers to
support testators in exercising their testamentary freedom - we gave one example at
paragraph 4.14 above. We also think it is worth repeating the findings of Professor
Rosie Harding, Dr Ezgi Ta§cioglu and Magdalena Furgalska that the exercise of
testamentary freedom might be particularly important for many people with intellectual
disabilities, because the intestacy rules might disproportionately fail to reflect their
lives and wishes.
4.96 Accordingly, we consider that there should be a legislative requirement of support in
relation to will-making. By adopting the MCA test of capacity for testamentary
capacity, the principles and the framework of the MCA will apply, including the
requirement of support in section 1(3). This, together with the other provisions of the
MCA, will require that a person is supported before they could be determined not to
have the capacity to make a will.483
4.97 We also consider that the MCA Code of Practice should be updated to include specific
guidance to those providing support about how they can and should provide support
to testators. 484It will ensure that those who provide support to testators to have
capacity - whether professionals or the testator’s friends or family members - will be
able to access information on how to do so. 485We make this recommendation in
Chapter 1, together with our other recommendations about adopting the MCA for
testamentary capacity.486
4.98 Although we do not recommend a formal supporter scheme applying exclusively to
wills, we agree with Professor Rosie Harding, Dr Ezgi Ta§cioglu and Magdalena
Furgalska 487that there should be a scheme for supported decision-making generally.
In particular, we endorse Recommendation 42 from the Law Commission’s report on
Mental Capacity and Deprivation of Liberty that:
The Secretary of State and Welsh Ministers should be given the power, by
regulations, to establish a supported decision-making scheme to support persons
making decisions about their personal welfare or property and affairs (or both).488
Supported will-making should fall within this general supported decision-making
scheme, as being a type of decision about property and affairs.
4.99 Within the context of a formal decision-making scheme, some of the concerns with a
bespoke scheme for will-making might be overcome. In particular, a framework for
formal decision-making which applies to many types of decision is likely to result in
supporters being commonly used and their role more widely understood. In this
context, greater engagement and compliance would be possible in relation to
supported will-making. Moreover, someone whom the testator would want to appoint
as their supporter to make a will might already be providing support for them on an
ongoing basis in relation to other decisions about property and affairs, and so they
would already be acting in a formal capacity under such a scheme.
4.100 Under our recommendation in the Mental Capacity and Deprivation of Liberty project,
a supporter would have to be aged 16 or over and meet any requirements that were
prescribed by regulations. We also recommended a regulation-making power under
which the role of the supporter, standards the supporter would have to meet, and
monitoring of decisions taken with assistance of supporters would be prescribed.489
4.101 We think that these provisions would allow for proper regulation of a supporter in the
will-making context. We think that any such regulations should be able to be context
specific. However, we suspect that many of the considerations about a supporter
scheme applying to property and affairs generally would be the same as those
applying in the context of making a will.
4.102 In our view, under a formal supported decision-making scheme, we think that those
wanting support to make a will should be able to choose their own supporter. We think
any appointment process should be simple and easy to comply with.
4.103 We previously considered whether we should recommend that a supporter should
owe fiduciary duties to the testator. 490Given that we consider a supporter should act in
the testator’s best interests but should also be able to benefit under the testator’s will,
we do not recommend that a fiduciary relationship should arise, because the
fiduciary’s duty to act in such a way as to exclude their own self-interest would conflict
with any legitimate potential for them to benefit under the will.
4.104 There is the further question as to whether, as a matter of the general law, a fiduciary
relationship would arise in any event. Fiduciary duties most often arise in settled
categories of relationship, such as those owed by agents and trustees. However,
fiduciary duties can, albeit rarely, arise outside of settled categories. As explained by
Lord Justice Legatt in the case Al Nehayan v Kent, whether a fiduciary relationship
arises requires an analysis of the nature and obligations of the specific relationship.491
4.105 Under the existing law, we do not think a fiduciary relationship would arise in most
situations, particularly in relation to a supporter who was a member of the testator’s
family or a friend. The supporter would not be acting as a surrogate decision-maker
and so would not be “entrusted with authority to manage the property and affairs”492 of
the testator. Accordingly, the supporter would not be an agent in the same way that
donees and deputies are. Because they will be supporting the testator to have
capacity, rather than advising them as to the testamentary dispositions they should
make, we do not think that supporters would have “a substantial degree of power over
the other party’s decision-making”. 493Moreover, where the supporter is a friend or
family member, who might be a potential beneficiary under the testator’s will, we also
do not think that it would be legitimate for the testator to expect the supporter “to
comply with the strict abnegation of self-interest that fiduciary doctrine insists upon”.94
4.106 However, in some situations, particularly where a professional is acting as a
supporter, fiduciary duties may arise due to the nature of their obligations to the
testator. As a result, the existing law might prevent the supporter from benefiting
under the testator’s will. As we said above, we generally think that supporters should
be able to be beneficiaries. But where the law recognises a fiduciary relationship, the
supporter’s ability to benefit will depend on whether the testator making the gift to the
supporter in their will is, under the law, a sufficient act of authorisation by the person
owed the fiduciary duties.95
4.107 Rather than recommending that the supporter owe the testator fiduciary duties, we
suggest that the regulations which bring the supported decision-making scheme into
effect should require supporters to act in the person’s best interests. Doing so will
ensure that the supporter is acting in the best interests of the testator, and not in their
own self-interest. We also think that supporters should be monitored by a public body
who has authority to scrutinise testamentary dispositions made with support.
4.108 There should also be awareness of the risk of undue influence that arises when a
person is supported to have capacity to make a will. Supporters, and others involved
in the will-making process, including solicitors and will writers, should be alert to this
risk and protect against it. The MCA Code of Practice should, in its guidance, highlight
this risk.
4.109 As we explain in Chapter 9 below, in the Consultation Paper we consulted on creating
a statutory doctrine of testamentary undue influence, which could involve a
presumption of influence arising in relation to certain categories of relationship. In the
end, we recommend that the court should be able to infer that a will was made as a
result of undue influence where there is evidence that provides reasonable grounds to
suspect it. The court will be directed to consider, among other things, any relationship
of influence between the person and the testator and the conduct of the person in
relation to the making of the will. Accordingly, anyone acting as a supporter who is
also made a beneficiary under the testator’s will should be alert to the possibility that a
court might consider that the supporter was in a position of influence in relation to the
testator and so may require affirmative evidence that the will was not made as a result
of undue influence.
4.110 Adopting the MCA test for capacity will promote compliance with the requirement of
Article 12(3) of the UNCRPD by providing access to support, making it a legal
requirement that people are supported in exercising their testamentary freedom, and
by requiring that they are supported before they are determined to lack capacity.
Requiring any person assessing the testator’s capacity to ensure the person is
supported will not impose a requirement that a solicitor or will writer themselves
supports the testator, but it will require them to ensure that the testator does have
94 M Conaglen, Fiduciary Loyalty: Protecting the Due Performance of Non-fiduciary Duties (2010) p 260.
adequate support from someone. In practice, we think the requirement will encourage
solicitors and will writers to support testators directly themselves: we hope it will
encourage more solicitors and will writers to offer the type of support to disabled
testators that some already do. A general scheme of support for decision-making
which allows people to rely on people they trust for support will also ensure that
individuals have meaningful support that is genuinely accessible to them, whether
they make a will through a solicitor or not.
4.111 We also agree with Professor Rosie Harding, Dr Ezgi Ta§cioglu and Magdalena
Furgalska, as well as Mencap, that accessible information about will-making has an
important role to play in supporting people to have testamentary capacity. Under the
Equality Act 2010, those providing services to the public are required to make
reasonable adjustments for people with disabilities.494 Accessible information might be
a reasonable adjustment that service providers should provide.
4.112 We endorse the recommendation made by the Law Commission in its report on
Mental Capacity and Deprivation of Liberty for a scheme of supported decision-
making to be introduced. This general scheme should apply to will-making.
4.113 Because we are endorsing a previous recommendation, which would be enacted by
clause 12 of the draft Mental Capacity (Amendment) Bill, 495this recommendation is not
reflected in our draft Bill for a new Wills Act.
4.114 Clause 12 of the draft Mental Capacity (Amendment) Bill inserts a new section 63A
into the MCA. New section 63A will require regulations to establish a scheme to
support persons in making decisions about their personal welfare or property and
affairs, or both. With our Bill applying the MCA test for capacity in the context of will-
making, we think new section 63A would not need to be amended for will-making to
fall within the scheme. In particular, with will-making being a decision governed by the
MCA test, we consider that will-making will be a type of property and affairs decision
within the scheme of the MCA as a whole, and so would be a type of property and
affairs decision for the purpose of the regulations made under new section 63A. New
section 63A also covers the matters on which we think regulations in relation to will-
making need to be made. For example, regulations could, by virtue of sections
63A(4)(d) and (e), require that any supporter must act in the best interests of the
person being supported.
5.1 A will must comply with certain formality requirements in order to be valid. Formality
requirements can be thought of as requirements that matters of substance are “put
into a particular form (in order to have a specified legal effect)”.1 The long-standing
requirements to make a valid will are currently found in section 9 of the Wills Act 1837.
5.2 The formality requirements for a will are thought to perform a number of functions. In
the Consultation Paper, we set out four such functions.
(1) An evidentiary function: compliance with formalities provides proof that the will
was executed by the testator. This function is particularly important because the
will may have been executed long before the death of the testator, but its
validity can only be challenged after their death.
(2) A cautionary function: the 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 can be thought of as having an element of
“consumer protection”, or of preventing a person from inadvertently creating a
legally binding document.2
(3) A channelling (and/or labelling)3 function: the formalities mean that a will
provides a well-defined means of passing property on death. Testators are
“channelled” towards a standard and well-understood method of accomplishing
their aims.
(4) A protective function: the formalities can assist in shielding the testator from
fraud and undue influence when making their will.
5.3 There is some disagreement about whether and to what extent each of these
functions is relevant. Moreover, some commentators argue that the formality
requirements perform additional functions, such as providing Government with the
means by which to collect taxes such as Stamp Duty Land Tax. We explored these
different perspectives in the Consultation Paper.4
P Critchley, “Taking Formalities Seriously”, in S Bright and J Dewar (eds), Land Law: Themes and
Perspectives (1988) p 508.
This purpose of the cautionary function (being to prevent people “being held to an alleged agreement the
terms of which they had not in fact agreed”) is discussed in a slightly different context in the Law
Commission report Transfer of Land - Formalities for Contracts for Sale etc of Land (1987) Law Com No
164, p 6.
We use these terms as synonyms, but there are slight differences between them. See Lon L Fuller,
“Consideration and Form” (1941) 51:5 Columbia Law Review 799 at 801 on the channelling function.
See Consultation Paper, paras 5.6 and 5.7.
5.4 The current formality requirements for making a valid will are set out in section 9 of the
Wills Act 1837:
9 Signing and attestation of wills
(1) No will shall be valid unless—
(a) it is in writing, and signed by the testator, or by some other person in his
presence and by his direction; and
(b) it appears that the testator intended by his signature to give effect to the
will; and
(c) the signature is made or acknowledged by the testator in the presence of
two or more witnesses present at the same time; and
(d) each witness either—
(i) attests and signs the will; or
(ii) 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.
(2) For the purposes of paragraphs (c) and (d) of subsection (1), in relation to wills
made on or after 31 January 2020 and on or before 31 January 2024, "presence"
includes presence by means of videoconference or other visual transmission.
5.5 We set out the current law relating to each of these formality requirements in some
detail in the Consultation Paper.496 We noted that there is no requirement to date a will
(even though the inclusion of a date can be helpful and is standard professional
practice).497
5.6 Where it appears on the face of the will that the formality requirements have been
met, the court may presume that the will was validly executed and that it expresses
the testator’s intentions.498 This is referred to as the presumption of due execution. The
“strongest evidence” is required in order to rebut the presumption of due execution,499
particularly where the will contains a formal or regular attestation clause: 500a statement
that the testator signed in the presence of both of the witnesses, and that the
witnesses signed in the testator’s presence.501 However, what constitutes sufficiently
strong evidence to rebut the presumption depends on the circumstances of each
case.502
5.7 In certain situations, compliance with section 9 of the Wills Act 1837 is not required in
order to make a valid will.
(1) Statutory wills are made on an application to the Court of Protection for a
person who lacks testamentary capacity to make their own will. We consider
statutory wills in Chapter 3 above.
(2) Wills which are formally valid under the law of a foreign jurisdiction may be
recognised under English law.503 Under the Wills Act 1963, the general rule is
that a foreign will is considered validly executed if it conformed to the law of the
jurisdiction:
(a) in which it was executed;
(b) 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
(c) of which the testator was a national (whether at the time of the execution
or at the time of their death).504
The Wills Act 1963 also deals with the validity of wills made in other, more
specific situations.505
(3) Wills made by privileged testators can be made without meeting any formality
requirements. There are currently three types of privileged testator: soldiers in
actual military service; mariners or seamen “being at sea”; and members of the
naval or marine forces in actual military service. 506We consider privileged
testators in detail at paragraph 5.107 below onwards.
5.8 In this chapter, we first discuss the extent to which the formality requirements might
deter or act as a barrier to will-making. We conclude that it would not be appropriate to
recommend overarching or fundamental changes to the formality requirements. As a
result, the current law’s formality requirements will need to be preserved in a new
Wills Act, and we explain how this is achieved in our draft Bill.
5.9 Secondly, we consider four specific aspects of the current formality requirements
about which we asked questions or made provisional proposals in the Consultation
Paper.
(1) We consider the attestation requirement, and recommend that it is preserved.
(2) We also recommend that provision for privileged wills is retained, but that the
scope of the privilege is modified.
(3) We discuss holograph wills (which are wills written and signed in the testator’s
hand) and recommend that no special provision is made to recognise them as a
particular class of will.
(4) Finally, we consider the potential for compulsory registration of wills, but we do
not recommend that registration should be required.
5.10 In the next chapter, Chapter 6, we recommend the introduction of a dispensing power:
a power for the court to validate a will that does not meet the formality requirements.
Subsequently, in Chapter 7, we discuss the invalidity of gifts made in a will to certain
categories of person (such as to one of the witnesses who attested the will). Then, in
Chapter 8, we consider the introduction of electronic wills.
5.11 In reviewing the law and recommending reforms in this area, we have kept in mind the
tension between two aspects of the formality requirements.507
(1) On the one hand, the formality requirements can be a barrier to people making
wills. A person’s testamentary freedom and genuine wishes may be defeated
because they do not comply with the requirements.508
(2) On the other hand, the formality requirements help to prevent wills being
accepted as valid even though they do not in fact represent the testator’s
wishes (such as if the will is forged and so has not in fact been signed by the
testator).
5.12 A change to relax the formality requirements may reduce barriers to making a valid
will, but it might also increase the risk of wills being made which do not reflect
testators’ intentions. A similar tension arises with respect to the complexity of the
formality requirements: a certain level of complexity is necessary for the formalities to
be able to perform their desired purpose, but the more complex the requirements are,
the more difficult it is for people to comply with them or the more likely that they will
make mistakes in trying to do so.
5.13 Overall, we wish to encourage people to make wills. A testator should be able to write
and execute a will, and be confident that it is valid. However, we have kept in mind the
importance of the formality requirements, and the functions they perform, when
developing our recommendations for reform in this area.
5.14 We start with the tension described at paragraph 5.11 above, and the question of
whether the formality requirements do indeed act as an unjustifiable or excessive
barrier to will-making. We invited the views of consultees in relation to three related
questions on this topic in the Consultation Paper.
5.15 In the Consultation Paper, we noted that there are ways other than through a will that
property can pass on a person’s death: for instance, where property is co-owned by
people as “joint tenants”, or where someone is nominated for the receipt of death
benefits and a dependant’s pension under a pension scheme. The formality
requirements for a valid will under the 1837 Act do not apply to those other means of
passing property on death.509
5.16 We therefore asked consultees two questions.
(1) First, we invited consultees’ views on whether the current formality rules deter
people from making wills.510
(2) Secondly, we invited consultees’ views on what they see as being the main
barriers to people making wills.511
5.17 We also noted in the Consultation Paper that there was a lack of evidence as to how
frequently wills fail for non-compliance with the formality requirements. We recognised
that obtaining data on this point may be difficult: where a will is clearly invalid, it may
not be submitted for probate, and so there will be no record of it. However, we had
also heard from practitioners that an “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 in the three preceding years. 512We therefore
invited consultees to provide us with evidence of how common it is for a will to be
invalid for non-compliance with formality requirements.513
5.18 Below, we take consultees’ views in relation to each of the three questions in turn.
5.19 Of the consultees who responded to our question about whether the current formality
rules deter people from making wills, only very few thought that the formality
requirements have an identifiable deterrent effect. 514Those in this category argued that
the requirements may give the impression that the will-making process is complicated
or outdated. For instance, one member of the public wrote that if “the process could
be made easier and less formal, I believe more people would obtain a will”.
5.20 Some consultees argued that specific formalities can dissuade people from making
wills. Dr Juliet Brook515 suggested that this was “especially” true of the need to find two
witnesses.516 Others noted that the costs involved - for example, of seeking legal
advice - can also dissuade people from making a will. For example, the Society of
Legal Scholars contended that “many people who were told the rules would think they
needed a lawyer to help them and would be dissuaded by the cost”.
5.21 However, even those consultees who thought the formalities could have a deterrent
effect did not necessarily think they should be changed. For instance, Michael Henry517
said that while the formality requirements might possibly deter will-making, the:
formalities should not be removed or diluted given the significance a will can have in
the disposition of an individual’s entire worldly goods and possessions. The
evidentiary, cautionary and protective functions of the formalities are of great
importance and should not be underestimated.
5.22 The significant majority of consultees did not think the formality requirements deter
will-making, 518with many writing that they had seen no evidence of any such deterrent
effect.519 Several reasons were suggested for this.
(1) Some consultees argued that people understand the need for formalities and
expect them to be applicable in the will-making context, as they know they are
signing an important legal document with significant consequences. 520Coffin
Mew LLP521 wrote that, in fact, “clients anticipate greater complexity and
formality when making wills”. A couple of consultees noted that people would
either go to a professional to make their will (in which case “the professional
ensures that the correct formalities are observed”), 522or that they rely on a
homemade will package which “sets out what they have to do fairly clearly”.523
(2) Other consultees suggested that people are not generally sufficiently aware of
the requirements for them to act as a disincentive. One of the consultees who
made this argument, the TAS Network, wrote that they “do not believe that most
testators are aware of the rules before seeking advice”.
(3) A few consultees argued that the formality requirements are not onerous, and
do not dissuade people who have decided to make a will. For example, one firm
of solicitors wrote that:
the current formality rules are clear, concise and easily understood. We do not
believe that these rules dissuade people from making a will.524
Another consultee noted that people can “easily obtain a simple will form from a
stationers and should be able to find two witnesses”.525
5.23 A number of consultees 526took a balanced view, namely that while the formality
requirements might have some effect of deterring people from making wills, other
factors and barriers are more significant. Macmillan Cancer Support wrote that the
formalities “possibly” deterred will-making because they “can be confusing and there
are lots of rules”, and that “not wanting to incorrectly execute a will may stop people
from making one”. Another consultee, Richard Wallington, 527wrote that:
It is possible that the current formality rules deter people from making wills in some
cases, but in my opinion other factors are more important deterrents.
5.24 We turn now to these other barriers to making a will.
5.25 A significant number of potential obstacles to will-making were raised by consultees.528
Out of these, five barriers were raised most frequently in responses, and were said to
be the most significant in nature.
5.26 First, consultees raised the (“actual and perceived”529) costs of the process. This was
described as a “major factor”.530 A solicitor wrote that “even people with a reasonable
level of income/assets are reluctant to pay”. 531Several consultees highlighted a
reluctance to spend money on something that will bring a future rather than an
immediate benefit, or pointed out that some people do not understand the
consequences of not having will, leading to a “disinclination to spend the money”.532
5.27 Consultees noted a tension between the (more expensive) professional will-making
route, and the (cheaper) services which may be available. STEP, for instance,
explained that the “cost of a professionally drafted will can be off-putting simply
because it is perceived as being high”. However, this issue is exacerbated by the
cheaper prices often quoted by will-writing services, which can be as much as ten
times lower. STEP concluded that this “makes the price of a solicitor drafted will seem
even more exorbitant to many”, whilst “equally the idea of using one of these services
can be off-putting as the lower price can be seen as a sign of poorer quality”.
5.28 However, some consultees suggested that there may be some misunderstanding
about the level of cost involved in making a will. Although there is a “common belief
that the process is expensive”,533 one consultee noted that “the reality is that will-
making even with solicitors comes at all price points and an accessible option is
usually available for most people”.534 One consultee wrote that wills are one of the
least expensive documents created by professionals, and are often regarded as loss
leaders by firms, while another suggested that people sometimes associate will-
making with being costly while misunderstanding the value of an up-to-date will.535
5.29 Secondly, consultees noted that people are reluctant to consider their own mortality.
One member of the public wrote that “the thought of deciding where you want your
assets and belongings to go is often distressing and most people don’t like to dwell on
their own death”. The same point was made by a firm of solicitors, who wrote that “it
requires a large amount of emotional effort to consider different eventualities and the
practical needs of their loved ones”. 536Additionally, several consultees noted that
some people are “superstitious about making a will and believe they will soon die if
they do so”. 537In other words, people may experience the “fear that making a will is
somehow ‘tempting fate’”.538
5.30 Thirdly, consultees suggested that people tend not to prioritise making a will, and
simply struggle with “getting round to it”. 539A barrister suggested that people regard
making a will as “an easy decision to postpone: they think they are unlikely to die
anytime soon, and so they can put it off”. 540This was described by one consultee as
the “natural human propensity to put off anything that requires serious thought and is
not obviously urgent”. 541The Law Society argued that “it is not compulsory to make a
will and it is often not a priority unless there is a difficult medical diagnosis”, while
another consultee suggested that “as with other complex and unfamiliar decisions,
inertia and procrastination means many people will postpone making a will and not
find the time to do it”.542
5.31 Fourthly, consultees raised the difficulty some people have in deciding what their will
should say. The Chancery Bar Association speculated that people can be reluctant to
choose how their estates should be divided after their deaths. Consultees noted that
there can be an “unwillingness to apportion possessions between [a] spouse/partner
and children”,543 and that people may not want “to face the issues in a family or
address them through favouring (or not) any individual”. 544This difficulty can be
exacerbated in “complex family situations”. 545One consultee suggested that “family
arguments and unresolved disputes can lead to the will-making decision being put off
in the hope that any tensions will be resolved at some future point”.546
5.32 Fifthly, consultees wrote that people may think that there is no need for them to make
a will. They might not appreciate the advantages of making a will in their
circumstances,547 or, conversely, might not understand the effects of not making a will.
(1) A few consultees wrote that many people do not feel the need to make the will
until they are older. Paul Saunders 548said that “perhaps supported by
superstition, many feel that wills are only for the elderly” (although he noted that
this perception is changing).
(2) Several consultees suggested that some people may not think they need to
make a will because they do not understand the extent or value of their assets.
Dr Catrin Fflur Huws549 wrote that although “people may have assets, they do
not consider that they are assets that would need to be disposed of by will”. For
instance, as consultees highlighted, people might not realise that life insurance
would repay their mortgage, 550or even that their estate could potentially bring a
claim against a third party if their death were caused by a negligent act.551
(3) Other consultees suggested that people work on a (mistaken) assumption
relating to how their assets will be distributed after their death. This can take the
form of a “widely held and frequently mistaken belief that in the absence of a
will everything will simply go to a partner, cohabitee or children”. 552Alternatively,
people might simply assume that “there will be no issues with their property
after they die and that their family will work out what to do with their estate”,553
and that their family will “do the right thing”.554 A couple of consultees also
highlighted a particular misconception about “common law marriage”: namely
the misunderstanding that cohabitants enjoy the same status as spouses or civil
partners and will be entitled to inherit on intestacy in the same way as those in a
formal relationship.555
(4) Finally, consultees noted that there is a general lack of understanding that it
might be in their interest to make a new will following certain life events - for
example, after having children, buying a property, or retiring. As Remember a
Charity pointed out, many people are also not aware that getting married or
entering a civil partnership can revoke previously written wills, and so they need
to make a new one.556
5.33 The five categories above are far from exhaustive. Consultees noted a range of other
potential barriers to making a will, including, for example, the reluctance of doctors or
other professionals to act as witnesses or to certify capacity. 557In addition, several
consultees suggested that people might be daunted by contact with (or lack access to)
legal professionals.
5.34 Other consultees noted that difficulty complying with the formality requirements can
act as a barrier to will-making. While people may not necessarily be dissuaded from
making a will by the principle of the formalities (as we discuss in the section above),
they might struggle in practical terms to comply with them. For example, a couple of
consultees noted that it can be difficult for people to find two witnesses, “perhaps
because they were housebound or did not feel comfortable with asking friends or
neighbours to witness the will”.558
5.35 We also heard from Mencap, who had carried out a consultation with some of its
employees about the will-making process. Those they consulted did not have personal
experience of making a will, but gave their views about the barriers that people with
learning disabilities may face in this area. In its response, among other helpful points,
Mencap highlighted that in order to make a will, people need support from someone
they trust (and who is independent), right from the start of the process through to
translating that person’s wishes into a will for them. Mencap noted that some people
with a learning disability might be anxious or scared about going to see a solicitor, and
that they will “want to see a solicitor who understands the needs of people with a
learning disability and can communicate in a jargon-free way”. It also wrote that
people might need particular support for their emotions, given that “thinking about
dying and wills... could be a scary and emotional topic for people”.559
5.36 Consultees who responded to our request for evidence of how common it is for a will
to be invalid for non-compliance with the formality requirements offered a wide range
of views.560
5.37 The consultation responses from HMCTS (HM Courts and Tribunals Service) and the
District Probate Registrars explained that in 2016 (the year prior to the publication of
our Consultation Paper), 156 wills which were submitted for proof were formally
refused. These include cases where the Probate Service had cause to query the
validity of the will, but also cases where the legal practitioners involved wanted the will
to be formally refused in order to enable them to proceed with an earlier will or under
the intestacy rules. Conversely, the figure of 156 wills does not include informal
situations where “the legal practitioner has made enquiries of their own and lack of
formal validity has been established so the will has been set aside by them” (which
would likely only happen where the executors and beneficiaries are all in agreement
that the will lacks validity).
5.38 Most other consultees set out their personal or professional experience or opinion, but
were clear that they did not have any reliable evidence or data on the point. For
instance, the Chancery Bar Association wrote that they are “not in a position to give a
statistical answer to this question”, but that all the members of their working group had
seen “several cases where wills have proved invalid due to inadvertent failure to
comply with the formality requirements”.
5.39 There was no consensus among consultees as to how often wills are invalid due to
non-compliance: many argued that invalidity on this basis was “very rare”,561 whereas
others suggested it was “reasonably common”. 562The Bar Council suggested that this
was a “very common” occurrence, although it acknowledged that barristers only tend
to see the cases which have gone wrong or are outside the norm. The Bar Council did
suggest, however, that the number could run into the hundreds each year, and that it
suspected that many more wills are technically invalid than the number that are
formally found to be invalid.563
5.40 One clear theme which emerged was that invalidity for non-compliance with the
formality requirements happens more regularly in the case of homemade wills than
professionally drafted wills. For example, Waller and Hart Solicitors wrote that “in our
experience in practice we find that approximately 50% of homemade wills which have
not been drafted by a professional are invalid”. Hugh James564 wrote that:
in respect of the estate administration cases we deal with (the majority of which are
professionally drafted wills), we would estimate that one in every 500 wills we see
are invalid for non-compliance with formality requirements. The cases we have seen
where wills have been invalidly executed have tended to be homemade wills.
Thomson Snell & Passmore LLP 565made a similar comment:
We do see wills which do not meet the formality requirements from time to time in
our contentious practice. However, because this is the very reason they have come
to us, we do not consider it a reliable guide to the overall number of such wills. In our
non-contentious work we are aware of only one incident in the recent past when it
was discovered after the testator’s death that a will we had prepared had been
incorrectly executed. We had prepared thousands of new wills in that time and
therefore consider that it is extremely rare for professionally drawn wills to be invalid
for non-compliance with the formality requirements. This is due in part to the fact
that a solicitor has prepared the will and either supervised or checked the execution.
5.41 Another interesting point which was made by several consultees is that it can be
difficult to distinguish between an “invalid will” (or a document which is “almost” a valid
will, but in respect of which the formalities have not been complied with), and
something which is simply not a will. A barrister566 explained that:
it is rare to see a will that is invalid merely because it does not comply with the
formality requirements (and when things that look a bit like wills but are invalid do
arise, they tend to be a very long way off being a valid will, eg an informal scribbled
note, rather than being almost correct save for a minor technical defect).
Lord Walker of Gestingthorpe, 567writing along similar lines, said that his impression
was that invalidity of wills for non-compliance with the formality requirements is
relatively uncommon, but that:
rather begs the question of what informal documents (such as an unsigned and
unwitnessed memorandum of gift, or letter of wishes) should be regarded as an
invalid will rather than simply a non-testamentary document.
5.42 Consultees also set out their views as to the most common reasons for which wills fail
to comply with the formalities. Many of these related to the requirements relating to
witnesses. For example, one consultee stated that approximately 20% of their
customers make a mistake with regard to the attestation requirement,568 while another
wrote that “the most likely defect is that a witness or [their] spouse is an intended
beneficiary”.569 A firm of solicitors argued that the most common problem is that wills
have “not been signed properly”, for instance because “the requisite number of
witnesses has not been present, or the witnesses have not been together to witness
the testator’s signature (often one has been there when the testator has signed, and
the other has signed later)”.570
5.43 Finally, one consultee - Hugh James571- explained that even though it is not, in its
view, especially common for wills to be found to be formally invalid for non-compliance
with the formalities, compliance with formalities can nevertheless be a significant
source of disputes.
In our Contested Wills, Trusts and Estates team we handle approximately 200-250
cases a year. Of those, we would estimate that approximately 10% deal with an
element of non-compliance with formality requirements. The vast majority of cases
settle before trial, often with some variation to the terms of the will in question as
there is often uncertainty. Thus, it is not especially common for wills to be held to be
invalid for non-compliance with formality requirements although it is relatively
common for there to be disputes about validity in this regard.
5.44 We are grateful to consultees for providing their general views on the formality
requirements and barriers to will-making.
5.45 We note that some consultees said they felt unable to answer these questions, or
argued that further research (in the form of a public survey) would be required in order
to reach reliable conclusions about why people were dissuaded from making wills.572
Although we agree that it would be difficult to draw definitive conclusions or extract
reliable data from the responses we received, we have certainly heard a variety of
useful and important views from a range of consultees, from members of the public to
professionals, about why people are deterred from making - or struggle to make -
wills. We have found this to be a helpful exercise, providing context to our
consideration of the formality requirements and will-making more generally.
5.46 People clearly face a range of different personal and societal barriers to making a will.
It is not possible for legislative change to address all of these barriers, and we agree
with consultees who argued more generally for greater education of (and better
information being provided to) members of the public about the need for - or benefits
of - a will.573
5.47 In this chapter, we are concerned specifically with the subject of reform to the formality
requirements. We continue to think that the formality requirements serve a number of
crucial functions in relation to wills.574 One is to ensure that the will represents the
testator’s wishes, not those of someone else. Wills forgery cases are not as rare as
might be hoped: the potential to inherit someone’s entire estate clearly acts as a
motivating factor for some. 575Furthermore, we do not think that the formalities have a
significant deterrent effect in respect of will-making; other barriers or impediments to
making a will, as we discuss from paragraph 5.25 above, appear to be of greater
impact. We therefore do not consider that overarching changes to the formality
requirements are needed or appropriate - and consultees were not advocating for any
such change. Indeed, even consultees who acknowledged that the formalities may
dissuade some people from making a will argued that they are nevertheless a
necessary and important part of wills law.576
5.48 However, as consultees noted (and as we heard at our consultation events), some
wills do fail on the basis of non-compliance with the formality requirements,
particularly where the will is homemade or has not had the involvement of a
professional. Further, we recognise that in some cases, the formalities can have the
effect of “invalidat[ing] a genuine attempt to make a will”, as Dr Brian Sloan put it. In
one relatively recent case, for example, a will was successfully challenged on the
basis that the formalities relating to witnesses were not complied with, even though
the court recognised that the attempted will had represented the testator’s wishes for
the disposition of her estate.577
5.49 We have therefore kept in mind the points made by consultees throughout our
examination of the formality requirements themselves - both in clarifying some in the
draft Bill, and in recommending reform to others. In particular, we recommend the
creation of a dispensing power, in order to allow a court to recognise a will which did
not comply with the formality requirements nevertheless as formally valid. The
dispensing power would apply where the will represented a person’s genuine
testamentary intentions at the time it was made and continued to do so at the time of
their death.
5.50 Before turning to the specific areas of attestation, privileged wills, holograph wills and
registration of wills, we explain how our draft Bill for a new Wills Act deals with the
formality requirements.
5.51 As we explain above, we do not recommend any fundamental changes to the formality
requirements that are currently found in section 9 of the Wills Act 1837. Those
requirements therefore need replicating in our draft Bill.
5.52 Clause 6 of our draft Bill provides that a will is not valid unless “the formality
requirements” are met in relation to the will. Clause 5 introduces Schedule 2 to the
draft Bill, which sets out a number of labelled requirements: Requirements A to F.
5.53 Paragraph 1 of Schedule 2 provides that a standard or paper will must meet
Requirements A to E. An electronic will - a topic we discuss in Chapter 8 - must also
meet Requirement F. The remaining paragraphs of Schedule 2 outline the
requirements in detail.
(1) Requirement A (paragraph 2) is that the will is in writing. This requirement
restates the first part of section 9(1)(a) of the Wills Act 1837.
(2) Requirement B (paragraph 3) is that the will is either signed by the testator, or
signed by an “authorised individual” (whom the testator directed to sign the will
on their behalf). This requirement restates the latter part of section 9(1)(a) of the
Wills Act 1837.
(3) Requirement C (paragraph 4) is that it appears from the testator’s signature (or
the signature of the authorised individual) that the testator intended the will to
have effect. This requirement restates section 9(1)(b) of the Wills Act 1837.
(4) Requirement D (paragraph 5) is that the testator (or the authorised individual)
signed the will in the presence of two or more witnesses. Alternatively, the
testator must acknowledge their signature (or the signature of the authorised
individual) in the presence of two or more witnesses. Requirement D restates
section 9(1)(c) of the Wills Act 1837.
(5) Requirement E (paragraph 6) is that two or more witnesses, in the presence of
the testator (but not necessarily in the presence of any other witnesses), signed
and attested the will (or acknowledged their signatures578). The witness does not
need to know that the document they are signing and attesting is a will, nor
what the will’s contents are. Requirement E restates both sections 9(1)(d) and
13 of the Wills Act 1837.
(6) Requirement F (paragraph 7) is that a reliable electronic system is used for
signing, identifying and protecting the will. Requirement F is a new requirement,
designed to facilitate the recognition of electronic wills and relevant only to
electronic wills. Paragraph 8 of Schedule 2 contains a power for the Secretary
of State to make regulations about how the formality requirements must or may
be met in relation to electronic wills (including by identifying systems - or
descriptions of systems - that are, or are not, considered reliable systems for
the purpose of Requirement F). We discuss electronic wills in detail in Chapter
8.
Paragraph 9 of Schedule 2 makes supplementary provision relating to the formality
requirements.
5.54 Section 9 of the Wills Act 1837 is therefore replicated in Schedule 2 to our draft Bill.579
Throughout the rest of this chapter (and the following chapters), we explain how our
draft Bill implements other recommendations relating to the formality requirements.
5.55 As we explain at paragraph 5.4 above, the Wills Act 1837 requires a witness to the will
to “attest and sign” the will - or to acknowledge their signature580 - in the presence of
the testator. The Act provides that “no form of attestation shall be necessary”.
5.56 In the Consultation Paper, we explained that the purpose of the requirement to attest
is not entirely clear.581 However, we noted that the Court of Appeal had recently said in
Sherrington v Sherrington that the attestation requirement means something more is
required than simply signing the will. 582We discuss the case of Sherrington in detail
from paragraph 5.74 below onwards.
5.57 We suggested in the Consultation Paper that even without the requirement to “attest”,
section 9 of the Wills Act 1837 already requires the testator to sign or acknowledge
their signature in the presence of two witnesses, each of whom must sign or
acknowledge their signature in the presence of the testator. We considered that, as a
result, the witnesses will have observed the testator’s signature (or their
acknowledgement of that signature), and will be signing (or acknowledging their
signature) to that effect.
5.58 We therefore suggested that the requirement to attest is unclear, and perhaps
redundant. As a consequence, we provisionally proposed that the reference to
attestation in section 9(d)(i) of the Wills Act 1837 be removed.583
5.59 We also asked a second, related question, in the event that consultees did not agree
that the attestation requirement should be removed. We invited consultees’ views as
to whether attestation should:
(1) be defined to mean that the witness must sign the will and intend that their
signature serve as clear evidence of the authenticity of the testator’s signature;
and
(2) apply in all cases, including those where the witness acknowledges their
signature in the testator’s presence.584
5.60 A majority of the consultees who responded agreed with our provisional proposal to
remove the requirement for attestation. Most of the remaining consultees disagreed,
with a small number expressing other views.585
5.61 Some consultees in favour agreed with our reasoning that the requirement for
attestation was redundant and unclear. For example, the Bar Council agreed
“unquestionably”, saying that “it is unclear what [attestation], if anything, adds”.
Richard Wallington586 commented that he had “often wondered what this was
supposed to mean”, agreeing entirely with our analysis. Another consultee, LawSkills
Ltd, wrote:
For all practical purposes it is not clear what the difference between attestation and
bearing witness to the signature of the testator might be. In the case of a testator the
attestation clause may reflect some limitation on how the testator has executed the
Will eg made his mark if illiterate. But in the case of a witness, their role is surely one
of acknowledgement that they saw the testator sign his or her Will or were advised
that the signature on the Will was that of the testator and signed to acknowledge that
accordingly.
5.62 Some consultees also pointed out the illogicality of the requirement for attestation not
applying when a witness acknowledges their signature.587
5.63 Some consultees who agreed with the proposal thought that reform would help to add
clarity and certainty to the law. For example, the Society of Legal Scholars noted that
there are difficulties with the meaning of attestation. The SLS noted that the courts
have suggested (including in Sherrington v Sherrington, which is discussed in detail at
paragraph 5.74 below)588 that the existence of the two words “attest” and “sign” implies
that the two are different concepts, rather than simply synonyms. However, it raised
the case of Re Selby-Bigge, 589in which the judge indicated that the use of both words
in the statute does not necessarily imply that the words have separate meanings.
5.64 The Society of Legal Scholars went on to argue that, even without a specific
requirement for attestation, section 9 would include a requirement for the witness to
have an intention in signing. The SLS noted the possible argument that the abolition
of the attestation requirement would, by leaving the requirement to “sign” in the
presence of the testator as the sole remaining requirement, “eliminate any rules about
the capacity in which the person signs and the purpose and intent behind the signing”.
The SLS argued that this would be “entirely unsatisfactory”, as the “underlying
purpose of requiring the signature is to vouch for the valid execution; if the person
signing did not have that intent, then the signing is meaningless”. However, it
contended that:
a statutory reform requiring the witness merely to sign would not lead to an abolition
of the requirement that the witness possess the requisite mental state. First, unlike
the original Wills Act, which referred to a “person”, the modern Wills Act provision
refers to a “witness”. It is therefore clear what must be the status of the person
signing and it is implicit that his intention at signing must be to provide evidence of
his observation of due execution. Secondly, similar implied requirements about
mental states at the time of signing exist in respect of other formality requirements.
The very requirement that the testator sign the will is subject to an implied
requirement that the testator possesses an intention to execute the will.
5.65 Some consultees opposed to the provisional proposal thought that the current law on
attestation did not cause any problems or is sufficiently clear. They included the Law
Society and STEP.
5.66 Several argued that attestation has a meaning. For example, Boodle Hatfield590 wrote
that the requirement should be retained but clarified to mean “that the witness
intended that his or her signature serve as clear evidence of the testator's signature”.
Paul Saunders591 similarly favoured its retention, with “attestation ... defined as the
intention of a witness to effectively authenticate the signature”. The Notaries Society
of England and Wales and Northamptonshire Law Society said that “to attest means
to certify that it is true”, with the Notaries Society adding that the term is “used and
understood throughout the common law and civil law world”. Dr Brian Sloan592
commented that the case Re Whelen “is an example of a case where the witnesses’
understanding of the process in which they were engaged was considered
important”.593 (In Re Whelen, the witnesses to the testator’s will believed that they
were witnessing the execution of a will by someone else; the actual testator was not
herself present at the time.)
5.67 Some consultees argued that removing the attestation requirement would cause
uncertainty. For example, the Notaries Society of England and Wales argued that
removing it “could increase litigation on technical points which are currently settled in
law”.
5.68 Which? commented on the application of the presumption of due execution, noting
that:
The presence of an attestation clause then raises the presumption that the will was
properly executed. This would be undermined if the attestation requirement was
removed.
Dr Richard Hedlund 594also commented on the practical use of attestation clauses, but
thought that their use should not determine the law:
An attestation clause is helpful for an easy probate, since the witnesses (or
someone else present at the execution; or a handwriting expert, if the witnesses are
not available) will have to provide an affidavit of due execution if there is no
attestation clause (Rule 12, Non-Contentious Probate Rules 1987). This is, however,
a question of good practice and is not and should not be a formality requirement in
its own right.
5.69 A substantial majority of consultees who responded to our question in the alternative -
if the requirement for attestation were retained - were in favour of defining the
requirement and/or applying it in the context of acknowledgement, with most of the
rest expressing other views and only a small number disagreeing.595
5.70 Anthony Collins Solicitors LLP thought that providing a plain English definition might:
raise the awareness of witnesses to what they are signing and as such, would
hopefully avoid or further limit issues of witnesses contacted post death about their
involvement having no or limited recollection about the Will signing process.
However, the extent to which this in fact causes issues at present is unclear to the
respondents.
5.71 Consultees who disagreed focused their comments on the first part of the question, on
defining attestation. Some thought that attestation is sufficiently clear so that it does
not need to be defined. Others, including the Law Society and STEP, added that they
disagreed with our proposed definition of attestation. They thought it would not be
“accessible” where professionals are not involved. Similarly, the City of Westminster
and Holborn Law Society suggested that our proposed definition would require the
witness to understand “what was meant by attestation”. Moreover, the City of
Westminster and Holborn Law Society argued that:
Authenticity implies that the person signing the will is in fact the same person as is
named in it as testator. A witness who has never previously met a testator could
probably do no such thing.
5.72 One consultee, Nikki Spencer, 596proposed a simpler definition: that “the signature of
the witness must indicate that he or she watched the testator sign the will”.
5.73 Finally, some consultees argued that it should not be possible for a witness to
acknowledge their signature, meaning that they must be required to sign in the
testator’s presence.
5.74 As we noted at paragraph 5.56 above, the most recent authoritative statement on the
meaning of “attest” in section 9 comes from the 2005 Court of Appeal judgment in
Sherrington v Sherrington. 597Below, we examine Sherrington in more detail, before
turning to some recent commentary on the attestation requirement.
5.75 In Sherrington, whether the witnesses had “attested” was one of the issues on appeal
(in what Lord Justice Peter Gibson called “an extraordinary case”), with the question
being whether the witnesses “did not intend to attest that the deceased signed the will
in their presence”.598 One witness claimed that she did not intend to attest, and both
claimed not to have seen the testator sign (nor the testator’s signature itself). The trial
judge held that the will was invalid. In allowing the appeal, the Court of Appeal
explained that it was required that the witnesses attested the testator’s signature;
however, because the trial judge had concluded that the witnesses’ evidence was
unreliable, the presumption of due execution must prevail. Therefore, the will was
valid.
5.76 In coming to this conclusion, Lord Justice Peter Gibson (giving the judgment of the
court) conducted a detailed review of the requirement for attestation. He first
commented that, as a matter of statutory construction, it is “plainly correct” that “attest”
must have a meaning beyond “signs the will”. 599He then cited earlier cases which
determined that “attest” means “to bear witness to a fact” (with the signature - or
subscription - being the only “outward work of attestation”);600 to “be present and see
what passes, and ... when required, bear witness to the facts”;601 and to “put his name
to the will as attesting to the fact that he saw the testator sign it; that is, he must put
his name as a witness”.602
5.77 Lord Justice Peter Gibson then cited textbooks and other cases to say that “the court
must be satisfied that the witness had signed the will with the intention” of either
attesting the testator’s signature or the will.603
5.78 Lord Justice Peter Gibson also specifically disagreed with an earlier judgment that
found that “the intention of the witness is immaterial if the will is in proper form”. He
explained that in making that finding, the judge had misunderstood a previous
authority, which was not decided on the basis of what the witnesses had intended but
on the operation of the presumption of due execution.604 The need to avoid imperilling
the validity of many wills based on the recollections of witnesses, often many years
after they were made, means that where the presumption of due execution arises, it
will prevail unless there is the strongest evidence to rebut it. Accordingly:
In the absence of the strongest evidence, the intention of the witness to attest is
inferred from the presence of the testator's signature on the will (particularly where,
as in the present case, it is expressly stated that in witness of the will, the testator
has signed), the attestation clause and, underneath that clause, the signature of the
witness.605
5.79 The requirement for attestation was more recently considered by the Court of Appeal
in 2018 in Payne v Payne,606 although the issue was less central to the case. The
requirement under section 9 of the 1837 Act that each witness “attests and signs” was
satisfied by the witnesses writing their names in capital letters (rather than signing
their names in the form of a signature) together with the intention that the act of writing
should operate as an attestation.607
5.80 Even more recently, in 2023, in an obiter comment in Re Sangha (Deceased), the
Court of Appeal discussed the requirement for attestation, commenting that:
If one then asks what is the purpose of the requirement for attestation, it seems to
me that it is for the two witnesses to confirm that they have seen this essential
element [the testator signing or acknowledging their signature in the presence of
both witnesses] being duly carried out. One cannot attest something that has not yet
happened. So if the signature by witness 1 takes place before this essential part of
execution, it is not a signature that attests that it has happened.608
5.81 In an article published in 2018, Dr Brian Sloan expressed concerns about our
provisional proposal to remove the requirement to attest from section 9,609
commenting on Payne v Payne.610
5.82 In his article, Dr Sloan engaged with the arguments of the Society of Legal Scholars in
their response to our provisional proposal to remove the requirement to attest
(namely, that removing the requirement to attest would not undermine the necessity
for the witness to intend, in signing, to vouch for the fact that the will was executed by
the testator). Dr Sloan noted that although the Society argued that the requirement
that the testator signs is subject to an implied requirement of intention to execute the
will, this requirement is in fact express in section 9(1)(b) - in the requirement that “it
appears the testator intended by his signature to give effect to the will”. Dr Sloan
noted that we were not proposing the removal of the requirement of intention in
section 9(1)(b) in relation to testators, only the requirement of intention in relation to
witnesses in section 9(1)(d).
5.83 Dr Sloan concluded that “a reformulation of attestation would be preferable to its
removal” because:
The reason why a witness is signing the will, ie that he is intending to vouch for the
authenticity of the execution, should be clear if the requirement is properly to fulfil
the evidentiary and anti-fraud functions of formalities.611
5.84 Dr Sloan also commented that, if attestation is removed as a requirement, careful
thought will be needed about the operation of the presumption of due execution.
5.85 The responses we received from consultees, along with the Court of Appeal’s recent
considerations of the attestation requirement and Dr Sloan’s article, have prompted us
to reconsider our provisional proposal to remove the requirement that witnesses attest
from the formality requirements. Our proposal was made on the basis that the
requirement was redundant (and unclear). Having re-examined the point, however, we
no longer consider that the requirement to attest should be removed (and, indeed, that
to do so would change the law). Instead, we think the condition should be retained
and clarified as far as possible.
5.86 With the benefit of consultees’ views and the recent developments set out above, we
consider that the requirement to attest means that the witness is signing the will to the
effect that, or to confirm that, they witnessed the testator’s signature. The requirement
for attestation is something more than the act of seeing something and then signing a
document: it is a requirement about the witness’s intention in signing the document.
That is, they are signing the will as evidence that they have witnessed the testator
sign. The witness’s signature is evidence of their attestation, but equally a witness
could sign a document without intending to attest.
5.87 Without the requirement that the witness “attests”, it appears that any circumstance in
which two people happened to see the testator sign and then signed the same
document would meet the formality requirements, without the witnesses having any
understanding that they were signing the document acting as witnesses to its
execution. There is no other aspect of section 9 which would impose a requirement of
intention in signing on a witness. In other words, the witness would not be required to
understand the role they were playing or understand the purpose for which they were
signing the document.
5.88 We agree with the Society of Legal Scholars that some of the older cases suggest that
the requirements to attest and to sign amount to the same thing, but we think that
these cases 612are more directly concerned with attestation clauses themselves, and
whether they must state on their face what the witnesses attested. As section 9
provides that “no form of attestation shall be necessary”, questions about the form of
attestation clauses are not questions about the validity of a will, but about the
evidence needed to prove the will (and specifically about whether the presumption of
due execution arises). So we do not think that these cases directly address the issue.
5.89 Moreover, the Court of Appeal has recently interpreted the requirement to attest in
section 9 as the requirement for the witness to intend with their signature to indicate
that they saw the testator sign. In the light of these recent cases from the Court of
Appeal, we think removing the requirement to attest would risk changing the formality
requirements in substance.
5.90 We also do not consider that describing the “witness” as such would, on its own, be
sufficient to impute a requirement that the person knows they are acting as a witness
to the execution of a document and intends to sign the document as such. 613In our
view, being a witness and bearing witness are different.
5.91 Accordingly, we think that removing the requirement that witnesses attest would risk
undermining the protective function of the formality requirements, by allowing a person
to act as a witness when they do not know that they are doing so or do not intend to
do so. It could also undermine the value of the evidence that witnesses may ultimately
be able to provide should the validity of a will be questioned, on the basis that if they
are not aware that they are involved in the execution of a document in the capacity of
a witness, then they are less likely to remember the event or to observe anything
about the testator.
5.92 We also think, because of the evidential and protective value of attestation, that the
requirements should equally apply in circumstances where the witness acknowledges
their signature in the testator’s presence. In that circumstance the witness would not
be attesting at the time that they signed, and so would not be attesting by virtue of
signing: they could not do so, having signed before the testator signed or
acknowledged their signature in their presence and the presence of at least one other
witness. However, they should nevertheless be required to intend their
acknowledgement of their signature to reflect the fact that they have seen the testator
sign: that is, they should attest by acknowledging their signature.
5.93 We also agree with Dr Brian Sloan that eliminating the requirement for attestation
could have an undesirable effect on the use of attestation clauses. Although
attestation clauses are not required (as stated in section 9(1): “no form of attestation
shall be necessary”), attestation clauses are regularly used in the wills context.
However, without any requirement to attest under the Act, it would seem unnecessary
and perhaps odd for attestation clauses to continue to be used.614
5.94 Attestation clauses have great practical benefit. Without an attestation clause, in order
to admit a will for proof in common form, an affidavit of due execution is required by
one of the witnesses, or, if they are not available, by another person present at the
execution of the will.615 Moreover, in contentious cases, for proof in solemn form,616
when there is a regular attestation clause, the presumption of due execution applies,
with strong evidence required to rebut it.617
5.95 The presumption of due execution is important because wills cannot be submitted for
proof until after the testator has died; often, they are not proved until years after they
are made, when the witnesses or anyone else with knowledge of the execution of the
will has also died. The presumption allows for the majority of wills to be accepted as
valid in circumstances where it would be difficult or impossible to provide any
evidence of the will’s valid execution other than the will itself.
5.96 We do not think that the practical benefit and widespread use of attestation clauses
means that the requirement for attestation cannot be removed or clarified. There is no
magic to the word “attestation” in these clauses: an alternative to attestation clauses
(for example, “due execution clauses”) could perform a similar function of providing
additional evidence on the face of the will that the formality requirements have been
complied with, which would ensure that most wills do not need affidavit or other
evidence to be proved. Nevertheless, we think it is a factor to be considered. Changes
to the requirement to attest would, in terms of the impact of reform, have
consequences on the use of attestation clauses. These consequences would require
changes to the Non-Contentious Probate Rules 1987618 and the presumption of due
execution by the courts in contentious cases.
5.97 We have concluded that the requirement for witnesses to attest should not be
removed. The requirement that witnesses attest contributes to the important protective
function that witnesses serve. We would be very hesitant to make any changes to the
formality requirements that would undermine this protective function. Instead, we think
the requirement should apply to witnesses regardless of whether they sign or
acknowledge their signature in the testator’s presence, so that the protective function
of attestation applies in all cases.
5.98 In the light of some uncertainty among consultees as to the meaning of the
requirement to attest, we have sought, in the draft Bill, to provide clarification as to
what exactly the witness must attest to, as we explain at paragraph 5.104 below.
5.99 We recommend that the requirement in section 9 for witnesses to attest when they
sign the will in the presence of the testator should:
(1) be retained in a new Wills Act; and
(2) apply when witnesses acknowledge their signature in the presence of the
testator.
5.100 As we discuss above, the formality requirements that must be met in relation to a
document for it to be a valid will are contained in Schedule 2 to our draft Bill for a new
Wills Act.
5.101 Requirement E, in paragraph 6 of Schedule 2, requires that two or more witnesses
either “signed and attested the will” or “acknowledged that they earlier signed the will
and that the signature on the will is theirs, and attested the will”. This wording
implements our recommendation to retain the attestation requirement, and to apply it
both where the witness signs and where they acknowledge their signature.
5.102 Paragraph 6(2) of Schedule 2 sets out two further matters.
5.103 First, paragraph 6(2)(a) provides that it “does not matter whether a witness knew that
what was being signed or attested was a will”. This replicates section 13 of the Wills
Act 1837, which provides that a will executed in compliance with the Act is valid
“without any other publication thereof”.619 So long as the formality requirements are
met, witnesses do not need to know that they are witnessing the execution of a will.620
This position is preserved under our draft Bill.
5.104 Secondly, paragraph 6(2)(b) provides that:
a witness attests a will if, by their signature or by acknowledging their signature, the
witness attests that requirement D was met in relation to the will.
Requirement D, which is found in paragraph 5 of Schedule 2, is that the will is signed
by the testator (or an authorised individual) - or that the testator’s (or authorised
individual’s) signature is acknowledged by the testator - in the presence of two or
more witnesses.
5.105 In other words, paragraph 6(2)(b) clarifies what the witnesses must attest to by their
signature or acknowledgement in order to comply with requirement E. The witness
must attest that they witnessed the testator sign or acknowledge their signature (or the
signature of the authorised person) on the will in the presence of at least one other
witness. Accordingly, the witness must have intended, in signing or acknowledging
their own signature to the testator, to do so as evidence or confirmation of what they
have witnessed.
5 .106 As part of the Bill-drafting process, we explored whether it would be desirable to
define the word “attest”, or indeed to replace it with a more modern word or phrase.
However, it became clear that to do so risks causing a range of problems. The term
“attest” is used in a number of places on the statute book, and it is not defined.621
Defining the term in the wills context would risk impacting on its interpretation in other
contexts. Moreover, replacing the term with a new word or phrase risks inadvertently
changing the law in the wills context, as well as potentially causing issues for
attestation clauses (as discussed at paragraph 5.93 and following above). We
concluded that the best approach is to clarify that attestation and signing or
acknowledging a signature are different, and to clarify how and what the witness must
attest to by their signature or acknowledgement in the wills context.622
5 .107 As we explained in the Consultation Paper,623 certain privileged testators can make
wills without complying with any formality requirements at all.624 A privileged will can
be written or oral, and does not need to be signed, witnessed or attested.
5 .108 There are three types of privileged testator, namely:
(1) soldiers (including members of the air forces) in actual military service;625
(2) mariners or seamen “being at sea”; and
(3) members of the naval or marine forces in actual military service or at sea.135
5 .109 “Actual military service” has been interpreted to have a broad meaning. Following the
case of Re Wingham,136 the test is satisfied if:
the testator is actually serving with the armed forces in connection with military
operations which are or have been taking place or are believed to be imminent.
Providing that this test has been satisfied, it is immaterial that that war has not yet
been declared or mobilisation begun. Equally, the actual military service does not
cease until the full conclusion of the operations, and may continue while the army is
in occupation of a conquered territory.137
The requirement to be “at sea” has also been construed widely. It appears:
to be equivalent to “on maritime service” and so include[s] the period when a testator
is returning from such service.138
5 .110 A privileged will remains valid even after the testator ceases to be a member of a
privileged group.139
5 .111 In the Consultation Paper, we set out three potential rationales for privileged wills.
(1) First, those on military service face a specific risk of death.
(2) 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.140
(3) Thirdly, and most importantly, enabling the making of 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”.141
5 .112 We noted that questions about these rationales have been asked - and criticisms of
privileged wills have been made - by a number of commentators.142 Among other
135 Wills Act 1837, s 11 and Wills (Soldiers and Sailors) Act 1918, s 2.
136 [1948] 2 All ER 908, 196 (by Denning LJ) and 192 (by Bucknill LJ).
137 A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 3-044.
139 Re Coleman [1920] 2 IR 332; Re Booth [1926] P 118; and The Estate of Snow (1963) 107 SJ 216.
140 The goods of Hiscock [1901] P 78 at 80.
141 The Armed Forces Covenant, the most recent version of which was published on 16 December 2016:
https://assets.publishing.service.gov.uk/media/5a8152b0e5274a2e87dbcff3/20161215-The-Armed-Forces-
Covenant.pdf (last visited 31 March 2025).
142 For example, R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed
2016) para 4-37; 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
criticisms, we explained that the privilege has been argued to be both over- and
under-inclusive.626 For instance, drone pilots engaging in warfare thousands of miles
from the battlefield seem to have the benefit of the privilege, whereas people
engaging in dangerous civilian occupations (such as firefighters), or indeed civilians
who are simply in danger of imminent death, do not.
5.113 Nevertheless, we noted that privileged wills do not seem to cause significant issues in
practice - and that most service personnel make ordinary wills.627 We also explained
our view that the strongest rationale for retaining the privilege lies in the Armed Forces
Covenant.
5.114 We therefore provisionally proposed retaining the privilege, but making some changes
to its scope.628
(1) We suggested that the privilege should (subject to one exception) be confined
to those covered by the covenant: in other words, to those serving in the British
Armed Forces. Merchant seamen and women would no longer be covered.
Beyond that limitation in scope, we did not suggest making any further
restrictions to the privilege.629
(2) The exception referred to above was that we proposed extending the scope of
the privilege to contractors and civilians who are deployed in combat zones to
work alongside the Armed Forces. This change would avoid the anomaly that
where a civilian contractor and soldier are travelling together in a combat zone,
the soldier alone can make a privileged will even though both might be in equal
danger. We suggested that this exception could be captured by extending the
privilege to civilians who are subject to “service discipline” within Schedule 15 to
the Armed Forces Act 2006.
5.115 The substantial majority of the consultees who responded to this question agreed with
our provisional proposal. 630Dr Brian Sloan 631agreed that our proposed approach
“would be a positive development in both rationalising and appropriately limiting the
scope of the privilege”. CILEx wrote that 93% of respondents to its survey on the
matter agreed that privileged wills should be retained, and that 79% agreed that the
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.
scope should be extended to civilians in the way we had provisionally proposed. Also
supporting the proposal, Anthony Collins Solicitors LLP agreed that the privilege
should “not be limited to active service due to the potential issues arising from the
scope of such definition”, and that in the case of civilians, our suggestion to use the
concept of “service discipline” was a sensible one.632
5.116 However, a significant minority of consultees either disagreed with our proposal or
gave other views.633
5.117 Some consultees argued that privileged wills should be removed altogether. 634The
most common reason given for this was that privileged wills are obsolete. One
consultee described the privilege as a historical anomaly which “makes no sense at
all”.635 A couple of consultees agreed that the historical purpose of privileged wills is
no longer relevant.
They originate from a time when those to whom they applied may have had little
other than what they carried on them. They would not have had ready access to
legal advisers, or the wide range of resources that service personnel have
nowadays.636
In contrast, service personnel are today “strongly encouraged to make wills before
deployment”.637
5.118 Dr Juliet Brook 638also agreed that there is no basis for retaining privileged wills. She
wrote that:
the majority of service personnel do have a will and the needs of this group of
people would be best served by requiring them to make a will at various key
moments in their career (ie on completion of training, before any overseas posting),
instead of enabling them to rely on the ability of colleagues to recall accurately
conversations that have been had without an awareness or understanding of the
testamentary nature of these conversations.
5.119 A number of consultees who thought that privileged wills should be abolished argued
that the Armed Forces Covenant - one of the key rationales for privileged wills, as we
explain above - would be served best by “encouraging more service personnel to
make written wills, and by providing the facilities to enable them to do so”, 639for
instance by providing free legal advice so that service personnel can make an
informed decision about their will.640
5.120 Finally, several consultees, such as the Law Society, suggested that privileged wills
may not be necessary following the introduction of a dispensing power.641 Dr Juliet
Brook argued that:
members of the armed forces (along with the rest of the population, especially those
engaged in risky activities) would be able to revise their will in a moment of crisis by
making a record of their new wishes (eg recording a video or sending an e-mail).
Dr Brook noted that purely oral wills would not be covered under a dispensing power
but would be caught by privileged wills. However, she argued that “the dangers of
undue influence / lack of certainty and lack of evidence endemic with oral wills (as
explained elsewhere in the Consultation Paper) means that these should not be
permitted”.
5.121 A number of consultees agreed with our provisional proposal to retain privileged wills,
but disagreed with our suggested changes to the scope of the privilege. Some argued
that the privilege should extend to more categories of people, including hostages or
prisoners, 642people in warzones (such as journalists or Red Cross workers),643 and
members of the emergency services and “those who put their lives in danger for
others” such as the police, fire brigade, ambulance, coastguard, and RNLI (Royal
National Lifeboat Institution). 644One consultee suggested that the privilege should
cover people on a ship or aircraft who are in circumstances of unusual danger (such
as sudden illness), where they think death may be imminent, and they do then die as
a result of the danger.645
5.122 Other consultees were of the view that the scope of the privilege should not be
changed. In particular, several consultees argued that the privilege should not be
removed from mariners and seamen or women. For example, Martyn Frost, Stephen
Lawson and Professor Robin Jacoby, responding together, argued that the basis for
privileged wills is not simply that service personnel can be placed in a position of
immediate threat of death, but that “very often the theatre of operations is remote and
dangerous and not one where legal assistance is available”. They contended that the
same basis applies to mariners and seamen and women:
Like members of the modern armed forces there is plenty of opportunity to have a
will prepared when not at sea or in a theatre of operations, but they are frequently at
sea where the privilege is still of importance.
Other consultees agreed, with one highlighting that “a boat can sink suddenly in war
or peace time and there would be no time for the normal formalities”.646 The Bar
Council also expressed their view that if the privilege were withdrawn from this
category of testator, “it will be inevitable that some people will not be aware that it has
been tightened” and so they might be left “out in the cold”.
5.123 On the other hand, a few consultees expressly agreed with our suggestion to remove
the privilege from mariners and seamen and women. The City of Westminster and
Holborn Law Society argued that the privilege was outdated, and that it:
clearly envisaged seamen at sea or abroad on long voyages, but a high proportion
of such seamen nowadays serve in large vessels with modern office equipment and
communications, and could doubtless get a will prepared and witnessed on board or
in a distant port were that to be necessary.647
5.124 A few consultees agreed with retaining privileged wills, but adding further conditions or
restrictions on their use.
5.125 For example, it was suggested that there should be a time limit on the length of time
for which a privileged will should remain valid after the testator leaves the Armed
Forces. The Charity Law Association Working Party argued that “by imposing a time
limit, perhaps, say, 1 or 2 years after someone leaves the British Armed Forces... it
[will] still give individuals time to make proper provision subject to the same validity
requirements as required for other wills”.
5.126 Another consultee proposed that, if privileged wills are retained, they should have to
be made in writing, and that the Ministry of Defence should run a register (receiving
the wills by email from the individual).648
5.127 We noted in the Consultation Paper that it would be difficult to narrow the definition of
“actual military service” so that only service personnel (and civilians subject to service
discipline) who are in “imminent danger” are included. We therefore provisionally
proposed retaining the privilege in its current form - in other words, implicitly retaining
the condition of actual military service.
5.128 However, we recognise that it was not entirely clear from Consultation Question 26
that we intended to preserve the actual military service condition, and indeed several
consultees understood us to be proposing its removal. These consultees argued
strongly against the removal of the condition, with one writing that to do so would be to
“to extend the privilege considerably”.649
5.129 We think that privileged wills should be retained. We understand that the privilege to
make a will without needing to comply with any formalities is unusual. However, it
continues to serve an important function for limited categories of people - primarily for
those in the Armed Forces. We continue to believe that the Armed Forces Covenant
provides a strong justification for the privilege, and that the privilege supports
testamentary freedom in the dangerous circumstances faced by service personnel.
We also remain of the view that civilians who are working alongside the Armed Forces
should benefit from the privilege. We think the best approach for establishing which
civilians are included is to adopt the existing statutory definition of civilians “subject to
service discipline” (as defined in the Armed Forces Act 2006, meaning a person falling
within Schedule 15 to the Act).650
5.130 We agree with consultees who noted that the need for privileged wills may be reduced
by the existence of a dispensing power. Indeed, we think the dispensing power might
play a useful role in giving effect to the testamentary intentions of some of the
categories of people raised by consultees who work in dangerous situations, but who
are not covered by the privilege, such as those in the police or fire brigade. However,
we do not agree with consultees that the dispensing power renders the privilege
obsolete. Privileged wills can be made orally, whereas the dispensing power will not
apply to purely oral statements of testamentary intention. In our view, it is right that
privileged wills should continue to be capable of being purely oral, given the extreme
circumstances in which they might be made.
5.131 Moreover, the dispensing power is a discretion, exercised after the death of a testator
in relation to a document which was not a valid will. In contrast, a privileged will is a
valid will from the time it is made, and a person making a privileged will has the
certainty that their will has effect. As a consequence, a privileged will can be admitted
to proof in common form under the Non-Contentious Probate Rules by a probate
registrar, including where the will is signed by the privileged testator or is in their
handwriting without further evidence of its validity. 651This would not be possible under
our recommended dispensing power, which will require an application to the court and
evidence about the testator’s intentions to support the court’s exercise of the power.
5.132 We continue to think that mariners and seamen and women should be removed from
the scope of the privilege. Their inclusion in the privilege is historical, but is now
outdated in the light of modern shipping practices: mariners are not cut off from the
modern world at sea and voyages do not generally take the long periods they did in
the past. If the inclusion of mariners is based on safety, it also seems anomalous and
arguably unfair: for instance, why are those flying on airplanes not also included?
Fundamentally, we agree with consultees who argued that it would not be difficult, in
modern times, to make a will on a ship.
5.133 Seamen and women who are part of the British Armed Forces - and so who come
within the Armed Forces Covenant - and who are in actual military service will
continue to benefit from the ability to make a privileged will. Further, if they are serving
with the Armed Forces (for example members of the Royal Fleet Auxiliary) they would,
as civilians working alongside the Armed Forces, still benefit from the privilege.
5.134 Beyond those amendments to the scope of the privilege, we do not think it would be
appropriate to make any further substantive changes. Accordingly, we recommend
that the privilege should be retained in its current form. We do not think, for instance,
that privileged wills should only be valid for a certain time period. This restriction would
make privileged wills the only form of will which has a time limit on its validity, and
could give rise to litigation about the exact date on which the privileged will was made,
and so when it ceases to be valid.
5.135 Furthermore, the privilege should continue to be limited to situations where service
personnel are in actual military service. For relevant civilians, the privilege will be
limited to situations where, if they were service personnel, they would be considered
to be on service: this will ensure that a civilian will not benefit from the privilege in
situations where a member of the Armed Forces in similar circumstances cannot.
5.136 As we note below, at paragraph 5.141, we have updated the reference to actual
military service to a reference to “active service” in our draft Bill, to bring it in line with
the Armed Forces Act 2006 and so to make it consistent with other areas of the law
governing service personnel.
5.137 We therefore make the following recommendation for reform.
5.138 We recommend that provision for privileged wills should be retained, but should be
confined in its scope to:
(1) those serving in the British Armed Forces on active service; and
(2) civilians who are subject to service discipline (as defined in the Armed Forces
Act 2006) who, if they were serving in the armed forces, would have been on
active service.
5.139 Clause 11 of our draft Bill implements this recommendation, alongside restating and
consolidating the existing law. Clause 11(1) to 11(3) disapplies the standard formality
requirements to make a valid will in the case of a “service will” (or the making of a
change to a will by a service will). 652We have adopted the term “service will” because
we think it is more helpfully descriptive to those without prior knowledge of wills law,
as compared to “privileged will”.
5.140 Clause 11(5) sets out that to make a valid service will, a person must be aged 16 or
over, must have capacity to make the will, and must be either:
(1) a member of the regular forces or reserve forces and on “active service”;653 or
(2) a civilian subject to “service discipline” 654who, if they were instead a member of
the regular or reserve forces, would be considered to be “on active service”.
The requirement to be 16 or over in clause 11(5)(a) of our draft Bill aligns the age of
testamentary capacity to make a privileged will with the age at which a person will be
able to make an ordinary will under the draft Bill: see our discussion in Chapter 10,
and clause 3 of our draft Bill. It also reflects that 16 is the youngest a person can be to
join the army, assuming they have parental consent (under the Armed Forces
(Enlistment) Regulations 2009, regulations 4 and 5 (subject to parental consent)).
However, we expect that a person of only 16 would not be able to satisfy the
requirements to make a service will because a person must be 18 years old to serve
on operations.655
5.141 Clause 11(6) and 11(7) defines “active service” in line with the Armed Forces Act
2006,656 updating the current law’s reference to “actual military service”. The
requirement to be on active service appropriately - and consistently across the
branches of the armed forces - captures the circumstances where the privilege
already applies.
5.142 Clause 11 consolidates in one place the law governing privileged wills. Accordingly,
our draft Bill also repeals the Wills (Soldiers and Sailors) Act 1918, in paragraph 4 of
Schedule 4.
5.143 Moreover, paragraph 12 of Schedule 4 amends the Children Act 1989 to make it clear
that a guardian can be appointed in a privileged will. This point was previously
unclear: the general requirements in section 5 of the Children Act 1989 would mean
that a privileged will, which was not in writing and signed by the testator, could not
make a valid appointment of a guardian; but section 4 of the Wills (Soldiers and
Sailors) Act 1918 specifically provided that an appointment of a guardian in a valid
privileged will would be valid.
5.144 A holograph will is a will written (entirely or materially) and signed in the testator’s
hand. Holograph wills are legally valid in a number of other jurisdictions, 657as a
distinct type of will: one that is valid without being witnessed. Holograph wills have no
status under English law. As the formality requirements under section 9 of the Wills
Act 1837 apply to them in the same way as any other will, they are not valid in
England and Wales.
5.145 In the Consultation Paper, we recognised that as holograph wills do not need to be
witnessed, the introduction of holograph wills could make will-making more accessible
and straightforward for testators, particularly those with small estates wanting to make
a simple will.658
5.146 An obvious argument against holograph wills is that removing the witness formality
requirement would increase the risk of fraud. Although we wondered whether the
requirement of handwriting could redress this issue,659 we noted that it would not
protect against undue influence, and, moreover, some jurisdictions in fact no longer
require the body of the will to be handwritten.660
5.147 We also argued that removing the requirement for witnesses might undermine the
channelling and cautionary purposes of the formality requirements.661 If making a will
is as simple as writing and signing a document, then a testator may not be aware that
by doing this, they have made a valid will.
5.148 Our view in the Consultation Paper was that any advantages of holograph wills did not
outweigh the risks they present. Moreover, introducing another set of formality
requirements could lead to confusion.
5.149 We therefore provisionally proposed that holograph wills should not be recognised as
a particular class of will in England and Wales.662
5.150 The overwhelming majority of consultees agreed that we should not recognise
holograph wills in England and Wales.663
5.151 Consultees who agreed that holograph wills should not be permitted were concerned
that, because the formalities do not need to be complied with, holograph wills do not
provide sufficient protection for testators against fraud and undue influence. For
example, Which? wrote that “attestation is a significant hurdle against abuse”. One
consultee argued that holograph wills undermined the importance and serious nature
of wills.664
5.152 Some consultees felt that having two sets of ways to make a will would cause
problems as it would be too confusing. Others thought that encouraging non-
professional and homemade wills was not desirable.
5.153 Other consultees thought that holograph wills would not be needed as a distinct type
of will if a dispensing power or electronic wills were introduced.
5.154 Consultees in favour of holograph wills thought that they would encourage more
people to make wills, as they would be easier to make than ordinary wills. Other
consultees argued that holograph wills allow testator’s wishes to be realised if they are
in a certain situation where they cannot find two witnesses, due to time pressure, for
example. Some consultees also suggested that witnesses do not necessarily always
perform a useful role in protecting against undue influence.
5.155 Other consultees, including the Bar Council, noted that holograph wills are used
successfully in other jurisdictions, and pointed out that there have been cases where a
UK national or domiciliary has made a holograph will in a country that recognises
them, and it has been accepted into probate in England and Wales under the private
international law rules governing the formal validity of wills.
5.156 We continue to consider that holograph wills should not be recognised as a particular
class of will in England and Wales.
5.157 Holograph wills appear to work well in other jurisdictions. However, most of those
jurisdictions have forced heirship as part of their law, meaning that the context is
significantly different.665 For example, in Scotland, both the deceased person’s spouse
or civil partner and their children have legal protections against disinheritance under
the deceased person’s will. 666As one consultee put it, in jurisdictions with forced
heirship, the “will is only disposing of a fraction of the estate, a significant part of which
has already been earmarked for family heirs”.667
5.158 We note that the Society of Legal Scholars disagreed with our proposal, taking the
view that the current will formalities are best suited to wills made with professional
assistance. It argued that it is desirable to offer a choice of different ways to facilitate
will-making, including registered wills signed by testators with one witness, and
holograph wills authenticated by a registrar or notary (or some form of notarial figure).
5.159 However, these would be significant changes to will-making, which we do not think
would offer clear benefits. Creating new systems of will-making, including the creation
of a register and a notarial system, would also involve significant costs. Further, it
would introduce complexity and confusion into will-making.
5.160 Accordingly, we do not recommend that holograph wills should be introduced in
England and Wales.
5.161 Registration of wills normally refers to recording the fact that a will exists and the
location where it is kept. Registration service providers index the relevant details of
the will so that executors and administrators can search the register to locate it.
“Registration” is therefore different to “storage”. Storage involves the service provider
holding the document for safekeeping. Many solicitors and other will writers store wills
as well as recording their existence with a registration company. Public bodies,
solicitors, will writers and specialised private companies often provide storage and
registration services.668
5.162 The purpose of registration is to prevent the will being undiscovered after the testator
has died. After a testator dies, their family and loved ones may not know where the
will is located, or they may be unsure if a will existed in the first place. Clearly, a
testator’s wishes will be frustrated if their will cannot be found after their death.
5.163 There are two types of registration system: compulsory and voluntary. In a compulsory
registration system, testators are compelled to register their wills. If they do not do so,
the usual sanction is that the will is invalid. In a voluntary system, the testator may
choose to register their will, to make it easier for the executors of their estate after
they die.
5.164 In England and Wales, there is no compulsory registration system. Testators can
register their wills voluntarily with certain public or private bodies. Whether a will is
registered does not affect its validity.
5.165 The Principal Registry of the Family Division operates a scheme that is publicly
accessible, where testators may register and store their will for a small fee and are
provided with a certificate of registration. 669Regulations provide for the withdrawal of
wills and outline the procedure to be followed when the testator dies.670
5.166 The commercial registries that operate in England and Wales do not generally store
wills but instead record their location, so the will can be easily found when testators
die. Solicitors and will writers may offer storage services, alongside registering the will
with one of the commercial registries.
5.167 Voluntary registration relies on the testator electing to (and remembering to) register
their will. Reform of the voluntary system would involve regulating the registration
industry. However, as we explained in the Consultation Paper, this falls outside the
scope of our project to reform the law of wills.671
5.168 Conversely, compulsory registration is a matter of formal validity of wills, so a matter
of wills law.
5.169 In the Consultation Paper, we acknowledged that a compulsory registration system
would solve the problem of lost wills. However, we explained our view that there are
more disadvantages than benefits associated with this system.672
5.170 Compulsory registration would come at a financial cost, potentially to both the state (if
registration is provided by a public body) and testators, and increased administrative
burden on the testator. We argued that this could discourage people from making
wills.673
5.171 To be effective, mandatory registration would require a sanction. The only effective
sanction appears to be making registration a requirement of validity. However, making
unregistered wills invalid would act as a significant barrier to will-making, particularly in
the case of deathbed and homemade wills.
5.172 We noted in the Consultation Paper that some civil law jurisdictions require wills to be
registered. 674However, it appears that only notarial wills are subject to that
requirement. A public official is involved in the making of a notarial will, so the
registration requirement is therefore less burdensome in that context than it would be
in England and Wales (where there are no notarial wills).
5.173 We therefore provisionally proposed that reform was not required:
(1) in relation to voluntary registration or depositing of wills; or
(2) to introduce a compulsory system of will registration.675
5.174 Of the consultees who responded to our consultation question, the majority agreed
with our provisional proposal not to reform the law in relation to the registration of
wills.676
5.175 Consultees who agreed with our proposal thought that introducing a compulsory
registration system would cause more problems than it would solve. Some, for
instance, argued that a compulsory registration system would add an unnecessary
level of complexity to making a will, which would result in an increase in litigation.
5.176 Consultees also thought that a registration requirement would be an additional barrier
to making a will. A number of consultees also argued that compulsory registration
would particularly undermine the making of valid homemade wills. The Bar Council
thought that the number of invalid wills in general would increase because testators,
solicitors or will writers may be unaware of the new barrier to a will’s validity.
5.177 Some consultees thought that a compulsory registration system was unnecessary.
One firm of solicitors wrote that “it is in the interests of testators to ensure that their
wills are easy to find because this will tend to ensure that their wishes are
respected”, 677while others suggested that issues with missing wills are rare (and often
arise for a reason, such as where the testator has changed their mind). Moreover,
consultees noted that solicitors often encourage testators to register their will to
ensure they know where it is stored or offer complimentary will storage. They thought
that the current voluntary system, including the Principal Registry, worked well. The
Bar Council also noted that one commercial register, the National Will Register (and
the Certainty Will Search service), is very frequently used, with millions of wills now
registered with the service. STEP argued that a better approach than compulsory
registration would be to encourage testators to register voluntarily with the Principal
Registry of the Family Division.
5.178 Other consultees raised practical issues: for example, if wills were not valid until they
were registered, testators could die in the period between signing and registering their
will. Consultees were also concerned about the likelihood of delays occurring when
registering a will. Some also noted that homemade, unregistered wills would not be
able to supersede earlier registered wills in a system of compulsory registration and
so a will that no longer represented the testator’s intentions would remain valid.
5.179 Consultees who supported the introduction of a compulsory registration system
generally argued that this approach would prevent wills from being lost and would
reliably ensure that the latest version of each will was found.
5.180 Consultees argued that compulsory registration is necessary to prevent wills from
being lost. Relatives and executors spend time and money trying to find out whether a
will exists, which could be avoided with compulsory registration. When families are
unable to locate wills, this can often lead to “suspicion and litigation”.678
5.181 Other consultees noted that the existence of a register would prevent someone from
destroying another person’s will that did not make the provision they thought it should.
One consultee put the point as follows:
It is reasonably easy for someone who does not want to admit that there is a will in
place to destroy it (so long as they are in possession of it) thus potentially depriving
beneficiaries of their inheritance. Compulsory registration would prevent that from
happening.679
5.182 Some consultees thought that the compulsory registration system would prevent fraud
and would allow testators to keep the existence of the will secret. The European
Network of Registers of Wills Association, who were in favour of a registration system
which is run by the state because it would strengthen legal certainty, said that
registration “protects the legal security of the will, by preventing the destruction of the
document after the death of the testator”, and allows the will to be found quickly. It
would also prevent “having to reopen the succession if a will is found late on in the
process”.
5.183 Some consultees also noted that in the current voluntary system, there is no certainty
that the will recorded by a register or held at a registry is a person’s last valid will. In
contrast, under a compulsory system, the registered will would be the most recent
valid will, and could guarantee (as far as possible) that the will would be proved. A
registration system would, in other words, “streamline the administration of estates”.680
5.184 Although we agree that a compulsory registration system could prevent wills from
being lost and ensure that a testator’s last will could be reliably identified, it would only
do so if registration was a requirement for formal validity. As one solicitor put it,
“without adequate enforcement [there is] little point in a compulsory registration
system”.681
5.185 We agree with those consultees who argued that a registration requirement would
create an additional barrier to will-making, which could deter people from making wills,
both because of the imposition of another step in the process of will-making which
would take more time and effort on behalf of testators, as well as the likely additional
cost associated with registration. We also agree that it would increase - perhaps
significantly - the number of wills that are formally invalid. Homemade wills would
seem especially vulnerable. There may also be a gap of time between the execution
of the will and registration, during which the testator may die. Compulsory registration
is better suited to notarial systems, where a designated professional must be involved
in will-making; there are many jurisdictions where this is required. However, that is not
the case under the law in England and Wales, where freedom of testation is a
paramount principle underlying the law. Accordingly, we consider that compulsory
registration would create an unacceptable barrier to will-making: fundamentally, we do
not think the modest benefits of compulsory registration would justify the significant
barrier to people making wills, and to wills being formally valid, that we think would
follow.
5.186 We also do not think that the introduction of a dispensing power, as we recommend in
Chapter 6 below, would address these concerns. Generally, we do not think that
introducing a dispensing power is a justification for making the formality requirements
more demanding; as we explain in our discussion about the dispensing power below,
we do not think that the dispensing power will in general be a viable alternative
method to making a formally valid will. Under the current law, most wills are proven in
common form, meaning by a probate registrar; without any contention as to their
validity; and based on the will, the statements of truth by the executors or
administrators, and any affidavit evidence required under the Non-Contentious
Probate Rules 1987.682 The dispensing power will be a power of the court, meaning
that it will require an application to the court. If registration were mandatory, a will
which complied with the formality requirements other than the requirement for
registration could therefore only be valid by an application to the court. We do not
consider the delay in proving the will, and the additional cost involved, would be
justifiable given the potentially large number of wills which would need to be validated
in this way.
5.187 Accordingly, we do not recommend that there should therefore be any reform to
require registration of wills.
5.188 We do, however, agree with consultees that it would be beneficial for the low-cost
deposit scheme available at the Principal Registry of the Family Division to be better
publicised.683
6.1 In the previous chapter, we considered the formality requirements that must be met for
a will to be valid. We now turn to the question of whether a will that fails to meet those
formality requirements should, in certain circumstances, nevertheless be recognised
as a valid will.
6.2 A “dispensing power” is a power for a court to recognise a will as valid even though
one or more of the formalities has not been complied with. A number of jurisdictions
have dispensing powers, 684but England and Wales is not one of them. As we discuss
in Chapter 11, there is a power to rectify wills,685 which can enable the court to correct
certain defects in specific circumstances, 686but this does not go nearly as far as
dispensing powers do.
6.3 As we set out in the Consultation Paper, dispensing powers can take two forms.
(1) A “substantial compliance doctrine” approach, which allows a court to dispense
with the formality requirements when the rules have been followed to a
sufficient extent for the court to be satisfied that the purpose of the rules have
been fulfilled.687
(2) An “intention-based” power, which enables a court to recognise a will to be valid
despite non-compliance with the formality requirements when it is satisfied that
to do so will give effect to the testator’s intentions.688
We set out in the Consultation Paper some examples of the potential effect (and
usefulness) of a dispensing power - for instance, in giving effect to wills which would
otherwise be invalid for a minor or technical defect.689
6.4 We then considered the question of whether a dispensing power should be introduced
in England and Wales. We explained that of the two forms of dispensing power, an
intention-based power would be the better option to explore, not least because they
are the preferred (and tried and tested) approach in other jurisdictions.690
6.5 We suggested that the strongest argument in favour of a dispensing power is that it
helps to ensure the testator’s intentions are given effect, reflecting the idea that the
formality requirements are “a means to an end and not an end in themselves”.691 The
risks involved in removing or reducing the need for formalities to be complied with
would be mitigated by the judicial control of the dispensing power, which we noted
might in fact offer more protection than simple adherence to formality requirements.
Furthermore, although we recognised that the introduction of a dispensing power
might cause litigation to increase,692 we suggested that a dispensing power would have
the positive effect of shifting the focus of litigation from upholding formal rules to giving
effect to testamentary intention.693
6.6 We did, however, acknowledge that there were reasons to be cautious about reform in
this area of law. We recognised that there was a lack of evidence concerning the
extent to which wills currently fail for non-compliance with the formalities, and so we
invited consultees to provide us with relevant evidence: a consultation question which
we discuss above. 694In addition, we appreciated that there had been both positive and
adverse commentary from a range of stakeholders on the topic of dispensing powers
(both in England and Wales and in other jurisdictions).695
6.7 In the Consultation Paper, we explained our provisional view that a dispensing power
can play an important role in upholding the intentions of testators - and therefore
testamentary freedom - and that the main criticisms are answerable. We therefore
provisionally proposed the introduction of a dispensing power in England and Wales.696
6.8 One of the main concerns that stakeholders had expressed was that a dispensing
power would be uncertain. In order to address this concern, we explained how we
envisaged the dispensing power should be structured, drawing on the approaches
taken in other jurisdictions. We outlined our provisional view about the dispensing
power’s structure.
(1) We considered that it should be exercisable by the court, as 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. If the power were shown to work simply
and effectively, the jurisdiction to exercise the power in certain cases could
possibly be delegated in the future to the Probate Service.697
(2) We considered that the power should have a wide scope so that it applies not
only to written documents but also to electronic records of testamentary
intentions (including audio or audio-visual recordings). However, we thought
that it should not apply to purely (unrecorded) oral statements.698
(3) We considered that it should be subject to the ordinary civil standard of proof,
as to apply a higher standard of proof would substantially limit the utility of the
power.699
(4) We considered that it should apply to records or documents of testamentary
intentions where the deceased person dies after the coming into force of the
relevant legislative provision, as it would not be viable for the availability of the
power to be determined depending on whether a document or record was
created before or after that time. The power would therefore operate
retrospectively, in the sense that it might be used to admit to probate a
document created before the power came into force, so long as the deceased
person died after the power came into force.700
(5) We also considered that the power should allow the court to determine
conclusively when and where the relevant written or electronic record was
made.701
We also suggested that the dispensing power should apply not only to recognise a
document as a valid will, but also to documents which revoke, revive or alter a will.702
6.9 In summary, therefore, we provisionally proposed that a power should be introduced
in England and Wales to dispense with the formality requirement for a valid will which
would:
(1) be exercised by the court;
(2) apply to records demonstrating testamentary intention (including electronic
documents as well as sound and video recordings);
(3) operate according to the ordinary civil standard of proof;
(4) apply to records pre-dating the enactment of the power; and
(5) allow courts to determine conclusively the date and place at which a record was
made.703
6.10 Just over half of the consultees who responded agreed with our provisional proposal
to introduce a dispensing power. 704We consider below the views that consultees
expressed on the introduction of a dispensing power generally, followed by those on
the various aspects we suggested the dispensing power should have.
6.11 We heard from a range of consultees who supported the introduction of a dispensing
power.
6.12 The Bar Council wrote that introducing a dispensing power was “an extremely
sensible and just proposal, which we wholeheartedly support”. The Bar Council went
on to write that:
sadly, far too often the testamentary wishes of the testator are frustrated, and the
testator’s family, friends or chosen charities deprived of their intended inheritance,
even though it is absolutely clear what the testator wanted. This reflects no credit on
a legal system. Giving the court a power to dispense with technicalities would be a
vast improvement.
6.13 Another consultee agreed that the introduction of a dispensing power as proposed
would be an “appropriate development of the law”. 705Consultees argued that there is a
“strong public interest in producing a testate estate rather than an intestacy”,706 and
that the dispensing power would prevent the frustration of the testator’s intentions
“due to circumstances sometimes beyond their control or by reason only of lack of
knowledge about the formalities required to create a valid will”. 707Along similar lines,
Professor Rosie Harding wrote that a dispensing power “exercisable under defined
circumstances by the court would help to ensure that the testator’s intentions are
given effect”.
6.14 Some consultees expressly agreed that the dispensing power would need to be
intention-based. For instance, Dr Richard Hedlund708 wrote that the power should
“operate on the basis of intention, namely that the courts must be satisfied that the
document shows the testator’s true testamentary wishes”.
6.15 Others who were supportive of the proposal suggested that the power would be
appropriately limited to unusual cases where cogent evidence would be required
before it is exercised.709 The Society of Legal Scholars tentatively supported our
provisionally proposed dispensing power, although it expressed some nervousness
that the power would provoke litigation.710
6.16 Dr Brian Sloan711 also supported a dispensing power. He set out risks which he argued
were associated with the introduction of a dispensing power, including the risks of
“damaging litigation and family strife”. He noted that a dispensing power arguably
undermines the rationales for the formality requirements, and wrote that -
there is a small risk that media coverage of the introduction of the new power will
dissuade people from bothering to seek legal advice to make valid, tax efficient wills
that reflect their intentions in all circumstances.
However, he explained that there are other methods of giving effect to testamentary
intentions in the absence of wills - such as proprietary estoppel, donatio mortis
causa,712 and the Inheritance (Provision for Family and Dependants) Act 1975 - which
may in fact involve “greater uncertainty or discretion than a dispensing power”. Dr
Sloan concluded that considerable care would be needed in drafting the legislation to
avoid the power being too broad.
6.17 Some of the representative bodies we heard from, such as CILEx, explained that their
members were split on the question of a dispensing power. The Chancery Bar
Association wrote that its working group was “evenly divided on this topic” and gave a
balanced view: “although the proposals, if adopted, would doubtless lead to increased
litigation, the law should strive to save genuine attempts to make a will rather than
frustrate them”.
6.18 Other consultees were more firmly against the proposal. Several argued that a
dispensing power would undermine the formality requirements. One consultee wrote
that “a will is a serious document, and moving too far away from its central
requirements waters down that requirement”.713 Another argued that “the simplicity and
certainty offered by maintaining a single set of formalities would be ended... now any
document could be a will”. One firm of solicitors argued that making a will is “not
difficult, notwithstanding the formalities required”, and that those formalities are a
valuable safeguard and “should not be dispensed with lightly”. 714Moreover, STEP
argued that the “creative” use of the court’s rectification power could deal with the
kinds of cases that the dispensing power would be used for, and concluded that:
no change should be made unless it is established that it would address something
which is a real and common issue in practice and which cannot be dealt with using
existing powers.715
6.19 There were a number of themes to the views of consultees who were against the
introduction of a dispensing power.
(1) Some contended that the power would lead to an increase in litigation, including
speculative litigation, as -
people would be likely to claim that any document made after the last valid will
that appeared to express some testamentary intention is a document that
should be considered to have the effect of a will.716
One solicitor wrote that the introduction of the power would “lead to a tenfold
increase in probate disputes”, 717and the Notaries Society of England and Wales
noted that this may “overload the courts”.
(2) Several consultees wrote that the power would create uncertainty - in
particular, for the testator. For example, one firm of solicitors wrote that the
power would “result in huge uncertainty for those in the profession when trying
to establish whether a will is valid”. 718Moreover, it would reduce certainty for
testators “as to how your assets are disposed of on your death”. One member
of the public similarly argued that the proposal would allow testators to “mess
up” their will “by leaving several differing expressions of preference”, and
concluded that a “will should only be superseded by another will”. Bircham
Dyson Bell LLP Charities Team agreed that many testators:
frequently give instructions for wills but then put them aside - it is common for
people to hesitate when they actually see the will drawn up on their
instructions. Similarly, there will be many examples of those who frequently
give various hints about possible changes to their will or about who they may
wish to benefit - but none of which crystallises into instructions for a will, or
which may be contradictory (eg “I’ve left everything to you” said to various
relatives). Hence, any document, in whatever form, which indicates who a
person may wish to benefit, even a draft will, needs to be treated with caution
- it is not necessarily evidence that the person intended to go through with
executing a will in those terms.
(3) Some consultees argued that the power might remove (in the words of Action
on Elder Abuse) “an element of protection from undue influence”, 719or increase
the risk of fraud, especially in relation to vulnerable testators. A couple of
consultees, including The Association of Corporate Trustees, wrote that the
formality requirements might make a fraudster “think twice” before trying to take
advantage of a vulnerable person. Another consultee was concerned that,
following the introduction of a dispensing power:
there would be nothing to stop someone putting a “fake” will in front of a
vulnerable person and asking them to sign, without any witnesses present,
and then relying on the dispensing powers without any independent evidence
being available to confirm (or challenge) the testator’s capacity.720
Consultees suggested this issue might be particularly acute if the dispensing
power could operate in relation to text messages, as it would be difficult to be
sure that the text was sent by someone of their own free will.721
(4) We also heard from consultees who suggested that if a dispensing power were
introduced, it would need to be very narrow in scope. For instance, a solicitor
argued that the power should only apply “in certain circumstances ie in the
absence of a will or when someone is terminally ill and has little time”. 722Some
pushed for the power to involve more of a “substantial compliance” requirement.
A retired solicitor wrote that if there is to be a dispensing power it should “be a
very narrow one restricted perhaps to where a person believes she has
complied with the necessary formalities but hasn't”. 723In another response it was
contended that:
substantial compliance must still be an essential component. There is too
much risk involved in allowing the dispensing power to be applied in any
circumstances. It should be available only where there has been a real
attempt to comply with the provisions of the Wills Act 1837, but complete
compliance has not been achieved.724
(5) Finally, a couple of consultees argued that a dispensing power would have a
negative impact on charities, as there might be an increased number of
challenges to wills in which charities are beneficiaries. In such cases, the
Charity Law Association Working Party wrote that “the majority of claims
brought against charities will be settled at a relatively early stage before ever
reaching the court based on the risks of litigation and reputational issues”,
which could cause an “overall reduction in the value of legacies passing to
charities”. Bircham Dyson Bell LLP Charities Team wrote that:
If such a power was introduced without being defined sufficiently narrowly, we
would also be concerned that there would be a risk of “expected” beneficiaries
being favoured by such a power ahead of charities.
Another consultee wrote that a dispensing power would mean that “every
application could in theory go to court”, which could “incur significant costs and
would be uneconomical for most modestly sized estates, and could lead to
more conflict between charities and families”.
6.20 We now briefly consider the views of consultees as to the various aspects we
provisionally proposed the dispensing power should have. In this section, we consider
the views both of consultees who were in favour of a dispensing power and of those
who were against it (but who also commented on the various elements of our
provisional proposal). For instance, one consultee expressed “real doubt” about the
power, but also wrote that “if there is to be a change I think the five proposals would
be the right way to do it”.725
6.21 Consultees generally agreed that a dispensing power should only be able to be
exercised by the court. For example, CILEx agreed with our provisional proposal
“providing, however, the Chancery Division of the High Court be handed this power”.726
Another consultee agreed that the power should be exercised by the court alone, and
was not in favour of the power being delegated in any circumstances.727
6.22 In contrast, HMCTS and the District Probate Registrars cautioned against moving
dispensing power decisions to the higher courts unnecessarily. Hugh James 728noted
that some of its lawyers commented that, once the power has been shown to work
simply and effectively, “it should be possible for the courts to delegate their powers in
straightforward cases to enable the probate registrar to grant probate to a formally
invalid will”. 729Hugh James argued that this would be “consistent with other powers the
probate registrar already has, such as admitting to proof a will as contained in a copy”.
6.23 A number of consultees agreed with our provisional proposal that both written and
electronic records (including sound and video recordings) should be included within
the scope of the power. Dr Richard Hedlund, 730for instance, set out some examples
from Australia, including:
a video recording made in contemplation of death (Re the Estate of Wai Fun Chan
[2015] NSWSC 1107) and an unsent text message, written before the deceased
committed suicide (Re Nichol [2017] QSC 220). These are examples of informal
wills made in more extreme circumstances, where full compliance with all of the
formality requirements might not be a realistic expectation. In my view, it is
appropriate for the law to allow these informal wills, bearing in mind the
circumstances in which they were made and that they were made with testamentary
intention.731
6.24 Hugh James argued that it is the case that people now use their phones, tablets and
computers to make records, and that there is “no option other than to recognise this
and to allow such records to be included within the scope of the dispensing power”.
Hugh James acknowledged that this might create uncertainty (and “doubtless more
litigation”), but wrote that “the objective of giving effect to testators’ intentions must be
the overriding principle”. Wrigleys Solicitors LLP wrote along similar lines -
Agreed in particular that electronic records, sound and video recordings should be
taken into account to demonstrate the testator's intentions. The risks of this
increasing the cost of and duration of any litigation (particularly by dissatisfied
relatives) are recognised and very much agreed, but equally if the point in
introducing such a power is to enforce a testator's intention, we must recognise that
electronic forms of communication and noting wishes are increasingly common and
so it would be unreasonable and unfair to ignore that.
6.25 On the other hand, some consultees disagreed with including electronic records within
the scope of the power. Liverpool Law Society’s Non Contentious Business
Committee argued that to do so would be to introduce electronic wills by the “back
door”. Another consultee agreed that electronic records should not be included “until
such time (if any) that such records could fulfil the requirements of a valid will”.732
6.26 It was also suggested by the Law Society that the dispensing power could go further
so as to include oral (unrecorded) statements of testamentary intention which were
made to two or more people. However, other consultees disagreed, with one writing
that if oral statements were included, “the scope for spurious claims would be
increased significantly”. 733Dr Juliet Brook 734argued that requiring a “record” (whether
electronic or written) is a “sensible compromise between trying to give effect to a
testator’s intentions and the requirement for evidence as to those intentions”. She
recognised that there might be emergency circumstances in which someone is unable
to produce a record in time, but contended that “the advantages of requiring a record
for both evidence and to scrutinise the wording to determine what was intended
outweigh the arguments in favour of permitting merely oral statements of intent”.
6.27 A number of consultees, including the Society of Will Writers and Estate Planning
Practitioners, Professor D G Barnsley and Anthony Collins Solicitors LLP, agreed that
the civil standard of proof should apply to the dispensing power. CILEx noted that its
members were split on the question of whether the civil standard of proof should
apply, but also explained that it was “conscious of the potential complexities that may
arise from introducing separate standards of proof within the civil jurisdiction”.
6.28 However, several consultees argued for a higher standard of proof in this area. A firm
of solicitors contended that if there is to be a wide dispensing power (which applies to
electronic as well as written records), the criminal standard of proof should apply.735
Another firm of solicitors argued that adopting the criminal standard of proof would
discourage speculative disputes, and that it was better for the standard of proof to be
too harsh than too lenient:
Should the civil standard prove too lenient the court may end up giving effect to a
perceived intention that was not in fact in the testator’s contemplation. In
comparison, should the criminal standard prove too harsh, the testator’s intentions
may go unaffected (as is the case under the current law). We believe that of these
two possibilities the former is the more intrusive and gives rise to the greater
injustice.736
6.29 Dr Juliet Brook argued that the examples given in the Consultation Paper, such as
permitting a will with only a technical failure to comply, are ones where “there would
seem to be no real doubt that the testator intended the document to form their will”,
and so the criminal standard of proof would likely be met. However, she wrote that in
less convincing cases (such as where a draft will has been prepared in accordance
with someone’s instructions but has not yet been executed), the position might be
different:
Whilst it might be clear that the will reflected the testator’s instructions at the time
they were given, it may not be so certain that the draft will still reflected the
instructions, especially if a number of days pass between the giving of the
instructions and the death of the testator.
Dr Brook contented that the application of the civil standard of proof in these cases
“would risk documents that are still merely contemplative being admitted to probate”,
and she concluded that further research into dispensing powers in other jurisdictions
on this specific point must be carried out.
6.30 Several consultees agreed that the dispensing power should apply in respect of
records pre-dating the enactment of the power, that is where the deceased person
died after the enactment.737 One firm of solicitors wrote that they saw “no issue with
[the] provision being retrospectively applied”.738 Dr Richard Hedlund 739agreed, but
noted that “it might be more difficult to prove testamentary intention for an informal
document created at a time when the law did not allow informal wills”.
6.31 However, a couple of consultees disagreed. Sheila Campbell 740wrote that the power
should only apply to written documents executed from the date of the enactment of
the power onwards. Another consultee - Thomson Snell & Passmore LLP741 -
explained that its response to this issue was dependent on a related point. It argued
that a testator should be able to choose to disapply the dispensing power, and that the
power should be disapplied even if that intention is expressed in an invalidly executed
will. Against that background, it was argued that the dispensing power should not
“apply to records pre-dating the enactment of the power as these wills could not have
been made in contemplation of the existence of such a power”.
6.32 Several consultees expressed support for our provisional proposal that the dispensing
power should allow the court to determine conclusively when and where a relevant
written or electronic record was made. CILEx wrote that a small majority of its
members agreed or strongly agreed with this aspect of the dispensing power. In
addition, Professor D G Barnsley concurred that a court power to make a conclusive
finding of where and when a record was made would be desirable: he wrote that “this
would seem to be more than simply a ‘useful’ power”.
6.33 It is worth highlighting a couple of further points made by consultees in the context of
a dispensing power.
6.34 Several consultees suggested that the publicity around the introduction of a
dispensing power might “lead to a presumption that electronic wills are automatically
accepted in to probate”. 742Wrigleys Solicitors LLP wrote that testators might query why
they should make a will, and could instead “simply write their wishes very clearly and
leave it to their relatives to sort”. Another consultee agreed, explaining that they have
concerns that “the general public will see this as a viable alternative to making a will,
leading to a drop in professionally drafted wills”.743
6.35 Other consultees commented that the court in dispensing power cases would likely be
faced with records of testamentary intention which do not deal with a person’s entire
estate, so there will often be “partial intestacy”. 744Anthony Gold Solicitors made a
similar point:
It is not clear how much information would have to be provided in order to constitute
a will - whether someone would have to deal with all of their assets, or whether they
could deal with specific heirlooms with the remainder to be dealt with as per the
main will. We anticipate that if the record has to be comprehensive, this could lead
to arguments about whether all assets have been covered and if not, whether the
record amounts to a valid will.
6.36 Having considered the range of views expressed by consultees, and conducted
further research into dispensing powers in other jurisdictions, we have concluded that
a dispensing power should be introduced in England and Wales.
6.37 As we explore at paragraph 5.45 above, it is difficult to establish definitively how many
wills fail for non-compliance with the formality requirements. In many cases, where a
document clearly does not meet the formalities (for example, because it was only
witnessed by one person), those seeking to propound the document will swiftly be
advised that it is not valid, so no attempt will be made to admit it to probate, and no
data is recorded.
6.38 However, it is clear that the formality requirements can and do have the effect of
invalidating some genuine attempts to make a will. Most of these cases do not make it
to court, but some do. A recent example is Burgess v Penny, where the court found
that one of the witnesses did not see the testator sign; as a consequence, the will that
reflected the testator’s wishes was invalid. 745A dispensing power will intervene in
these cases to give effect to the clear testamentary intentions of people who have
died. By way of example, one consultee - Macmillan Cancer Support - told us of a
situation where a person’s testamentary intentions were thwarted by circumstances
they considered to be out of her control.
We were informed that a lady had died and prior to her death she had completed
and signed paperwork setting out the terms she wanted included in her will. The
solicitor prepared the Will however he was delayed in taking it to the testator due to
Christmas and also the fact that he was unable to arrange transport to attend her
home. These delays, which were in no way down to the testator, meant that by the
time the solicitor was able to visit her, she had died. The lady died intestate and
Macmillan did not receive a gift. We had been informed that the gift to us would have
been worth over £100,000. There was no doubt that the lady’s true wishes were not
met. We were informed by a friend who had nothing to benefit from telling us of her
wishes. The intestacy beneficiary was unknown to the testator.
6.39 It is exactly in these types of case that it should be possible to seek the application of
the dispensing power by the court: situations where a person’s testamentary
intentions are clear, but there is no valid will to give effect to them.
6.40 We therefore recommend that a dispensing power should be introduced. Below, we
consider the key issues raised by consultees. We then explore how the power is
drafted in our draft Bill, alongside the individual elements or attributes of the power.
6.41 We are alert to the risk, raised by some consultees, that a dispensing power would
increase uncertainty and could give rise to litigation. However, our understanding is
that the introduction of dispensing powers in other jurisdictions has not led to a
disproportionate increase in litigation.
(1) Following our consultation, we heard from law reform bodies in Canada (British
Columbia and Alberta) who explained that there had not been a flood of
litigation since dispensing powers had been introduced in those jurisdictions.
The British Columbia Law Institute explained to us that despite the
apprehension among practitioners before the power was brought in, few cases
were being brought. The British Columbia Law Institute recently confirmed with
us that the courts continue to apply the dispensing power cautiously, and there
is only a relatively small volume of case law on it. The Alberta Law Reform
Institute made similar comments in recent correspondence, noting that all but
one application to validate a non-compliant will or alteration under the
dispensing power had been successful, and describing the power as a useful
addition to the legislation.
(2) We also heard from law reform bodies in Australia. Mr Ian Hardingham, a
member of the Victorian Law Reform Commission, told us that although there is
a steady stream of applications (around 250 per year), few are vexatious and
many are dealt with by consent. The Queensland Law Society explained that
although there was some increase in uncertainty after the change in that
jurisdiction from a substantial compliance to an intention-based dispensing
power, 746this has since settled and the position is “now well comprehended by
experienced succession lawyers”.
(3) Finally, we heard from the New Zealand Law Commission, who helpfully
provided us with an analysis of the impact of the introduction of a dispensing
power across two periods.
(a) From 1 November 2007 (when the dispensing power came into force in
New Zealand) until 13 December 2017, the New Zealand Law
Commission informed us that there had been 182 High Court judgments
under the power. Most cases were uncontested (only 5% being
opposed), and 92% of the documents submitted to the High Court were
validated using the power.
(b) From 14 December 2017 until 12 December 2024, the New Zealand Law
Commission told us that there were 234 decisions concerning the power,
three of which were appeals. Compared to the previous ten-year period,
there was an increase in contested applications: 12.68% of claims -
excluding appeal judgments - were opposed, primarily by people known
to the deceased person, such as by friends or relatives. Furthermore,
there was a slight decrease in the proportion of documents validated by
the court under the power (90%). The New Zealand Law Commission
explained that of the 21 (non-appeal) decisions that were rejected by the
court:
(i) five were rejected because the relevant document or documents
already met the formality requirements and constituted a valid will;
(ii) one was rejected in part for failure to comply with the High Court
rules, and another was rejected because the parties settled the
claim; and
(iii) the remainder were rejected for failing to meet the requirements of
the dispensing power.
None of the applications were rejected on the basis that the submitted
materials did not constitute a document.
6.42 The administration of estates already operates in a context in which there is
uncertainty (and litigation). Uncertainty can arise, for example, because a will can be
challenged for invalidity, a later will might be found (after the estate is administered),
or a claim could be made under the doctrine of proprietary estoppel or under the
Inheritance (Provision for Family and Dependants) Act 1975. We do not think the
dispensing power adds a significant further level of uncertainty to the administration of
estates.
6.43 However, we acknowledge that a dispensing power will introduce some uncertainty
into the law governing the formal validity of wills. A dispensing power will be entirely
new in this area of law: the formality requirements are absolute. Although there have
been suggestions that the court’s current power to rectify a will could be used to rectify
a failure to comply with the formality requirements, 747we are not aware of any attempts
to use the rectification power in this way. As Professor Birke Hacker has said, there is
no suggestion that there is “anything like a full-blown ‘judicial dispensing power’” in
England and Wales. 748Clearly, introducing one is a significant change, and one that
will inevitably result in some uncertainty, particularly as the scope of the power and
the court’s willingness to exercise its discretion to validate an invalid will is developed
by the courts in the case law.
6.44 But it is our view that any added uncertainty caused by the existence of a dispensing
power is justified in light of the benefits of the power and the ability to give effect to
testators’ intentions. A dispensing power compliments the court’s existing rectification
power: 749both aim to ensure that a testator’s wishes are carried into effect where those
wishes can be determined with certainty. The formality requirements are necessary to
ensure that the vast majority of wills can be proved without supporting evidence but
with a high level of confidence that they represent the testator’s wishes. Discretionary,
essentially equitable, powers, like the rectification power and now the dispensing
power, recognise that the rules governing wills do not exist for their own sake, but to
protect testamentary freedom. These exceptions to the rules recognise that mistakes
should not be fatal in individual cases if they can be addressed and the court is
persuaded that it should grant relief from them. In the words of the Chancery Bar
Association, “the law should strive to save genuine attempts to make a will rather than
frustrate them”.
6.45 We also emphasise that what we recommend is a power. That is, the court will be
given the discretion to dispense with the formality requirements on a case-by-case
basis. The court will not be obliged to exercise the power in any case, including where
it would be unjust to do so (for example, because the person seeking to have a
document validated under the dispensing power delayed unreasonably in bringing the
claim to the detriment of the beneficiaries of a validly executed will). We trust that the
court will exercise the dispensing power judiciously, and only in cases where it is
satisfied that the documents or records clearly evidence the person’s testamentary
intentions. We also agree with consultees who noted that the legislative drafting of the
dispensing power is of great importance. We explain the drafting of the power in our
draft Bill at paragraph 6.76 and following below.
6.46 Some consultees also contended that the introduction of a dispensing power will
encourage people not to comply with the formalities to make a valid will. We do not
think, however, that the dispensing power will be seen as a viable alternative method
to making a will. It is not until after death, when the court has decided to exercise the
dispensing power, that it becomes clear that a document will be recognised as a valid
will. Moreover, anyone seeking a grant of representation on the basis of a will must
provide a statement of truth that the document sought to be proved is the last will of
the testator.750 There will be no obligation on anyone, including a personal
representative, to discover documents to which the dispensing power could apply and
apply to the court to exercise its power, whether the testator had previously made a
valid will or whether they were intestate. The dispensing power will therefore not
provide any real certainty to testators that their property will be disposed of in
accordance with their wishes. However, complying with the formality requirements -
which are straightforward and relatively easy to comply with - will give the testator
confidence that their wishes will be brought into effect. We think the dispensing power
will be seen as an option of last resort, and that the vast majority of testators will
continue to make formally valid wills so that they can be certain that their estate will be
disposed of in accordance with their wishes.
6.47 Other consultees suggested that the dispensing power will make it easier to carry out
fraud or undue influence against testators. However, we emphasise that a dispensing
power will not allow the court to accept a document as a valid will where the deceased
person lacked capacity or was unduly influenced. The dispensing power only allows
for the formality requirements to be dispensed with; it will not allow the requirements
for substantive validity to be dispensed with. Accordingly, a document that can be
made valid by the dispensing power will be required to have been made by someone
with testamentary capacity,751 who had knowledge and approval, and who was not
subject to undue influence. 752We explore in detail the topics of capacity in Chapter 2
and the protection of testators in Chapter 9.
6.48 The next question that arises is what form the dispensing power should take. In the
Consultation Paper, as referred to above, we discussed two types of dispensing
power. First, there are substantial compliance powers, which are concerned with the
extent of compliance with the formality requirements. Substantial compliance powers
do focus on testamentary intentions, but they are subject to a further formal
requirement that:
must be established independently of testamentary intent. And the standard for this
formality is essentially quantitative: compliance cannot be substantial unless the
defect is minimal.753
6.49 The other approach is an intention-based dispensing power, which we provisionally
preferred in the Consultation Paper. The intention-based approach gives primacy to
the testator’s intentions. In every jurisdiction that has a dispensing power in respect of
wills, the intention-based approach has been adopted. Queensland originally
introduced a substantial compliance power, 754but amended it to an intention-based
approach in 2006.755 The Queensland Law Society, who wrote to us following our
consultation, expressed the view that, on balance, the intention-based approach “is
considered to be more effective and appropriate to achieving the intention of the
deceased than the previous model of substantial compliance”.
6.50 In light of the views we received from consultees, we have concluded that the
intention-based approach is the right one for the dispensing power in England and
Wales.
6.51 It is important to note that there are, however, different forms of intention-based
dispensing power. Some dispensing powers are narrow (allowing a court to dispense
only with certain formality requirements),756 and others are broad (allowing a court to
dispense with any formality requirements). 757Some assess the testator’s general
intention (looking at all evidence of the terms on which the testator wished to make
testamentary dispositions), whereas others are more specific (looking, for instance,
only at documents that the testator intended to constitute their will).758
6.52 In our view, the dispensing power in England and Wales should be broad - allowing
the court to dispense with any of the formality requirements - and should involve an
assessment of the testator’s general testamentary intentions as expressed in any
documents or records. This draws in particular from the dispensing power in British
Columbia. We prefer this formulation because it focuses fully on the testator’s wishes,
rather than making reference to a specific form of expression of those wishes or
otherwise arbitrarily restricting the application of the power.
6.53 The court should be able to look at any document or record (including electronic
records, as we discuss below) made by the testator which expresses their
testamentary intentions. We acknowledge that this means that a potentially wide
range or high number of records could be submitted to a court for determination in a
case. However, the requirement that the record must express the testamentary
intentions of the testator will limit the scope of relevant documents.759 The general
requirements of substantive validity - including the requirement for knowledge and
approval - will also ensure that the dispensing power can only be applied to
documents that the testator intended to be a will in substance, even if not in form:
meaning something which is intended by the testator to make “a disposition of [their]
property to take effect after [their] decease and which is in its own nature ambulatory
and revocable during [their] life”.760
6.54 In considering whether a record (or records) demonstrates the deceased’s
testamentary intentions, the court will have regard to the relevant evidence. It is likely
that the evidence necessary to establish the deceased’s intention will vary, depending
on the facts of the case. The court should consider any evidence of probative value.
Clearly, the court will need to closely consider the record itself. The court should also
assess any evidence of the signing or witnessing of the record, if the deceased had
attempted to comply with the formality requirements or otherwise execute the record.
The court should also consider any evidence, extrinsic to the record, about the
person’s testamentary intentions, including statements they made to others, such as
what they wanted to happen or what they assumed would happen with their estate on
their death.
6.55 We think it is important that the dispensing power includes a requirement that the
document or record must continue to reflect the testamentary intentions of the testator
when they die. It is not sufficient for a record to have reflected the intentions of the
testator when they made it. If the testator changes their mind before they die, the
dispensing power will not apply to that record.761
6.56 Of course, a record to which the dispensing power applies cannot be revoked, in the
way that a testator may revoke a valid will. However, there must be a way of ensuring
that a record to which the dispensing power applies does not express testamentary
wishes that the person no longer held. Accordingly, the dispensing power we
recommend expressly requires that the record continued to represent the person’s
testamentary intentions at their death. This is not a standard requirement that applies
to valid wills: if a testator made a valid will but did not revoke it in accordance with the
requirements for revocation, it will govern the distribution of their estate when they die.
Records to which the dispensing power can apply will therefore be subject to a stricter
requirement of ongoing intention than applies to formally valid wills.
6.57 This “continuing intention” requirement will also limit which records are relevant to
dispensing power cases, and will appropriately limit the scope of the dispensing
power. We think that evidence that will satisfy this requirement would be similar to the
sort of evidence that could apply in relation to the presumption that a will that was in
the testator’s possession, but is missing after their death, was destroyed by the
testator with an intention to revoke it (a point we discuss in Chapter 13 below). For
example, evidence that the testator’s relationships or feelings towards beneficiaries as
reflected in the record had or had not changed, and evidence about how the testator
kept the record - for example, together with their important papers - would be
relevant.
6.58 Before turning to the individual elements of our recommended dispensing power, we
note that much of our discussion has been in terms of the formality requirements
being dispensed with so that a document or record forms a valid will. In other words,
the effect of the dispensing power being applied in that situation would be that the
document would be deemed to meet the formality requirements, and so could
constitute a valid will and be admitted to probate. However, it is important to note that
the dispensing power will also apply to the formalities required for revocation of a will,
revival of a revoked will, and alterations to wills. By way of example, a document
which purports to be a codicil to a valid will but which was not correctly witnessed
could be found by the court under the dispensing power to be a valid codicil to that
will.
6.59 Further, if a testator intended to revoke their will by making a new will or by a written
intention to revoke, but the will or written intention failed to comply with the formality
requirements for a valid will, the revocation could nevertheless be effective if the court
determines that the record expresses the testator’s testamentary intentions. However,
as we explain in Chapter 13, the dispensing power will only be able to dispense with
the formality requirements; it will not be able to apply to the requirement of destruction
under the doctrine of revocation by destruction because the revocation of a will in that
way is not subject to any statutory formalities. This will mean that an act, if insufficient
to amount to destruction under that doctrine of revocation, will not be able to be
deemed to be sufficient under the dispensing power.762
6.60 We now turn to the various attributes of our recommended dispensing power, namely
that it should:
(1) be exercisable by the court;
(2) apply to records demonstrating testamentary intention (including electronic
documents as well as sound and video recordings);
(3) operate according to the ordinary civil standard of proof;
(4) apply to records pre-dating the enactment of the power; and
(5) allow courts to determine conclusively the date and place at which a record was
made.
6.61 First, the dispensing power should be exercised by the courts which have jurisdiction
over contentious probate cases: the Chancery Division of the High Court, and the
County Court (up to the County Court limit). 763Until the dispensing power is well-
established, we do not think there should be any delegation of the power. For
example, at least initially, we do not think that it should be a matter of non-contentious
probate that could be determined by probate registrars. We agree with consultees that
the Chancery Division of the High Court (and the County Court where relevant) is the
appropriate forum to determine dispensing power cases. As we stated in the
Consultation Paper, we think the court is best placed to assess the facts in individual
cases and to set the parameters for the operation of the dispensing power.
6.62 Secondly, the power should apply to all records demonstrating the testator’s intentions
(including electronic documents and sound and video recordings).
(1) We were not persuaded by consultees’ objections to the inclusion of electronic
records within the scope of the dispensing power. To exclude electronic records
would be to place an arbitrary limit on the scope of the power that would fail to
recognise how many people in the modern world have turned to electronic
systems as their primary method of communicating and record-keeping.
Excluding electronic records would prevent the dispensing power and our draft
Bill from being “future-proofed” to keep pace with technological changes.
(2) Furthermore, electronic records might have substantial probative value, and
may act as clear evidence of a person’s testamentary intentions. 764Although the
inclusion of electronic material may mean the court is faced with a large number
of records (such as texts and emails), it will be able to examine (and determine
the evidential value of) such records, just as it would with written documents.
(3) Some consultees suggested that including electronic records in the scope of the
dispensing power would allow electronic will-making via the back door. 765As we
discuss in Chapter 8, we recommend that electronic wills should be able to be
formally valid, and outline the additional formality requirements with which
electronic wills will have to comply. Accordingly, there will be no reason for
anyone wishing to make an electronic will to try to rely on the dispensing power
to do so.
(4) However, we do not think the dispensing power should extend to purely oral
statements. We maintain that allowing oral statements (even those that are
witnessed) would provide too much scope for uncertainty, dispute and fraud in
dispensing power cases. We recognise that it is possible to make a privileged
oral will, but the ability to do so is justified by their very limited application (in
terms of who they apply to) and, in particular, the circumstances in which they
can be made.766
(5) We also note that in some jurisdictions (such as New Zealand and Victoria), the
dispensing power as outlined in the statute includes an exhaustive list of the
evidence that the court may consider when deciding whether to exercise the
power. 767We do not think the dispensing power in England and Wales should
include such a list, as we do not think it helpful to constrain the court’s ability to
examine relevant evidence as it sees fit. In determining the deceased person’s
testamentary intentions, the court will be able to consider all the relevant
evidence. In this context, just as when it is considering whether a will is formally
or substantively valid, the court will be acting as a “court of probate” because its
role will be to determine if the document expresses the testator’s testamentary
intentions.768 There are no limits on the evidence that a court of probate court
can consider,769 including in relation to evidence of the testator’s intentions.
6.63 Thirdly, the dispensing power should operate according to the ordinary civil standard
of proof: the balance of probabilities. We remain of the view that it would be
inconsistent to apply the criminal standard of proof to dispensing power cases, and
would make this area unique in wills law in England and Wales (as well as severely
weakening the utility of the power). Moreover, we do not think that it is desirable to
create an exception to the civil standard of proof in this context, as this could create
significant complexities for the civil law jurisdiction. However, we do expect the courts
to be cautious in their application of the dispensing power, particularly because of the
“inability of the testator to give evidence on his or her own behalf, and the potential for
fraud”. 770Cogent evidence will be required to demonstrate that a record, on the
balance of probabilities, reflects the testamentary intentions of the deceased person.
We note that specific provision does not need to be made in our draft Bill to ensure
that the dispensing power operates according to the ordinary civil standard of proof,
and so we do not include this as an express part of the recommendation below.
6.64 Fourthly, the dispensing power should apply to records pre-dating the enactment of
the power where the deceased person died after the enactment. We do not think the
alternative option (that the power only applies to records created after the enactment
of the power) is a viable one. A person’s date of death is clear, whereas the date of a
record’s creation might not be. If the power applies only to records created after its
enactment, the court will be obliged to make a finding as to the date of the record’s
creation in every case. This could create two-stage proceedings, where the court must
determine at a procedural hearing whether the power is capable of applying at all,
before dealing with whether the power should apply at the substantive hearing. This
would place a potentially unnecessary and disproportionate burden on the court, and
could introduce complexity and delay to proceedings, with the effect of hindering the
administration of estates.
6.65 Fifthly, where it is necessary to do so, the court should be able to determine
conclusively the date and place at which a record was made. As above, the court
should not be obliged to make any such finding in all cases. The date on which a
record was made by the testator may be uncertain and it may not be necessary to
make a determination. That will be the case, for example, where there is no valid will
and the record is the only evidence of the testator’s testamentary intentions. However,
in other circumstances, it may be critical for the court to determine the date of creation
of a record: for instance, if a record is found to pre-date a formally executed will, then
it should not be admitted under the dispensing power. The court may also need to
determine the place where a document was made as this might have relevance to
private international law issues. However, we do not need to make specific provision
in the draft Bill to allow the court to make such findings, and so we do not include this
as an express part of our recommendation below. The court may also make such
findings in relation to formally valid wills. For example, a later made will or codicil
impliedly revokes an earlier will to the degree it is repetitive or inconsistent with the
first. 771So if there are two inconsistent gifts, which are irreconcilable, the later gift will
be treated as revoking the former.772 Again these are matters that the court, acting as a
“court of probate”, will be entitled to determine.
6.66 We now consider some final matters before setting out our final recommendation and
explaining how our draft Bill provides for the dispensing power.
6.67 Some consultees noted that there is an undesirable risk of partial intestacy in
dispensing power cases, as the court would likely be faced with records which do not
deal with a person’s entire estate (as we discuss at paragraph 6.35 above). However,
there is no requirement for a standard - formally valid - will to be comprehensive in
dealing with the testator’s entire estate, so this risk of partial intestacy arises for
ordinary wills too. Moreover, the court in dispensing power cases will be able to
examine and - where appropriate - admit a number of records where a person dealt
with their estate in more than one place.
6.68 The issue of jurisdiction was raised by other consultees. For instance, one consultee
noted that the Australian and New Zealand dispensing powers expressly state that the
power can apply to records created inside or outside the jurisdiction.773 To be clear, our
intention is that the dispensing power, when exercised, would give the relevant
document or record the same validity as a formally executed will, including in private
international law. However, it is unnecessary to state this on the face of a new Wills
Act because a record to which the dispensing power would be applied will be
considered a “valid will” in the domestic law of England and Wales, meaning that it will
be considered to conform with the internal law in force in England and Wales under
section 1 of the Wills Act 1963. It is this Act which governs the private international law
rules about the formal validity of wills. Consequently, a record to which the dispensing
power applies will be recognised as formally valid according to the international
private law of England and Wales in the same circumstances that a formally valid will
would.
6.69 We have also considered the question of costs. We consider it is right that the general
civil costs regime applies in dispensing power cases, as it does in probate cases
generally. Under the general civil costs regime, there is a presumption that the losing
party pays the winning party’s costs, although the court has discretion to deviate from
this. 774We think this costs regime disincentivises spurious claims, while providing
sufficient flexibility to the court in appropriate circumstances. We note that specific
provision does not need to be made in our draft Bill (nor in the Civil Procedure Rules)
to ensure that the dispensing power operates according to the ordinary civil costs
regime, and so we do not include this as an express part of the recommendation
below.
6.70 We did not address in the Consultation Paper whether there should be a limit on the
period within which an application for the use of the dispensing power could be made.
Any such period would logically start to run from the time of the testator’s death. One
consultee suggested that a time limit could apply in order to enable the personal
representatives of the deceased person to distribute the estate (and to have protection
against claims under the dispensing power).775
6.71 We do not, however, think there should be a time limit on the dispensing power.
Although time limits do exist in relation to some related claims,776 we do not think a
time limit would be appropriate here. There is no time limit on obtaining a grant of
probate (or letters of administration in respect of an intestate estate). 777Since the
question the dispensing power will determine is whether a record can be a person’s
valid will, we think the same approach should apply. Furthermore, the court has the
ability to revoke a grant of probate and redistribute wrongfully administered assets (for
example, where a later valid will is found). 778The court should also be able to revoke a
grant of probate to admit a document under the dispensing power, although whether
doing so is practical will depend on the case.
6.72 We also note that there are no time limits on the use of dispensing powers in
numerous jurisdictions around the world.779 We understand from the New Zealand Law
Commission, however, that there is a limit in practical terms after which it would be
impractical to seek to use the dispensing power. We expect the same would be true in
England and Wales: as the dispensing power is a discretionary power, the court may,
for instance, decide against exercising it in a certain case where someone has failed
to make a timely application.
6.73 We therefore make the following recommendations.
6.74 We recommend that a power to dispense with the formality requirements necessary
for a valid will should be introduced in England and Wales.
6.75 We recommend that this dispensing power should:
(1) be exercisable by the court;
(2) apply to records demonstrating testamentary intention (including electronic
documents, as well as sound and video recordings); and
(3) apply when the deceased person dies after the coming into force of the
power, including to records pre-dating the enactment of the power.
6.76 In our draft Bill, the dispensing power is provided for in clause 10. Any person is
entitled to apply to the court for an order under clause 10 where one or more of the
formality requirements is not met in relation to a will. For clause 10 to apply, the will
must be in the form of a “document”. The term “document” is broad, so brings both
written and electronic records within the scope of the power (including sound and
video recordings).780
6.77 The court can only make an order under clause 10 if it is satisfied of two things:
(1) that the document demonstrated the testamentary intentions of a deceased
person at the time the document was made; and
(2) that the document continued to demonstrate the testamentary intentions of the
deceased person until the time they died.
In other words, the court has to be satisfied that the deceased person expressed their
testamentary intentions in a specific record (or records) when they made it, and that
they did not change their mind before they died.
6.78 If the court is satisfied of these matters, it can, by an order under clause 10, deem the
formality requirements to be met in relation to the document. As a result, the
document will be a formally valid will (or revocation, revival, or alteration of a will).
However, in order to be a valid will, the substantive validity requirements will also
need to be met, that is, the person must have had testamentary capacity at the time
they made the record, the person must have known and approved of its contents, and
the record must not have been procured as a result of fraud or undue influence.
6.79 There is no need for clause 10 to make specific provision such that the dispensing
power operates according to the ordinary civil standard of proof; clause 23(1) makes
clear that the power will be exercised by the High Court. Clause 26(2) implements our
recommendation that the dispensing power should apply to records regardless of
whether they are made before or after the enactment of the power (so long as the
testator dies after the power is enacted).
7.1 In this chapter, we consider the rules relating to the validity of gifts in a will, particularly
in relation to gifts given to someone who signs a will on behalf of the testator and to
witnesses to the will.
7.2 Under the current law, a person who signs the will on the testator’s behalf can be a
beneficiary under the will. This sits in contrast to the position of a witness to a will: a
gift to a witness - or to their spouse or civil partner - is void (although the will remains
valid). 781In the Consultation Paper, we made a series of related provisional proposals
to align the position of these two categories of person. Below, we consider these
topics as follows.
(1) First, we consider the position of people who sign a will on behalf of a testator.
We recommend that gifts to these people should be void, but that the will
should remain valid. We also recommend that gifts to the spouse or civil partner
of a person who signs a will on a testator’s behalf should be void (to align the
position with spouses and civil partners of witnesses).
(2) We then consider whether a gift to a cohabitant, or any other family member, of
either a witness or a person who signed on a testator’s behalf, should also be
void. We recommend that cohabitants should be included within the invalidity
rule, both in respect of witnesses and those signing on behalf of a testator.
(3) Finally, we consider the potential to “save” a gift that would otherwise be invalid
on account of the identity of the person to whom it is given, and we recommend
that this should be possible in specific circumstances.
7.3 Under section 9(1)(a) of the Wills Act 1837, a will must be signed either by the testator
or by another person in the testator’s presence and under the direction of the testator.
This formality requirement is preserved in our draft Bill for a new Wills Act (as
“Requirement B” in paragraph 3 of Schedule 2). As we noted in the Consultation
Paper, there are no restrictions on who that other person can be. It is possible for the
person signing the will on the testator’s behalf to be a beneficiary - or even the sole
beneficiary - under the will.782
7.4 We argued that this possibility is concerning, and that it is at odds with the position
relating to gifts to witnesses and their spouses or civil partners, which are void. 783As
one senior judge said in the Court of Appeal in a case from 2012, “it is plainly
undesirable that beneficiaries should be permitted to execute a will in their own favour
in any capacity”. 784We provisionally agreed, arguing that the risk of undue influence or
fraud is disproportionately high, particularly when weighed against the (not very great)
difficulty of finding someone who is not a beneficiary to sign the will on the testator’s
behalf.
7.5 We suggested that the best approach to this issue would be to treat a person who
signs a will on behalf of a testator in the same way as a witness to a will for these
purposes. In other words, we provisionally proposed:
(1) first, that the will should remain valid, but gifts to the person signing on the
testator’s behalf should be void; 785and
(2) secondly, that a gift to the spouse or civil partner of a person who signs a will on
a testator’s behalf should also be void, in order to align the position with that of
witnesses.786
7.6 The overwhelming majority of the consultees who responded to this question agreed
that a gift to a person who signs a will on behalf of a testator should be void.787
Consultees who agreed included the Law Society, the Notaries Society of England
and Wales, and the Chancery Bar Association.
7.7 Many who agreed with the proposal did so on the basis of the same or similar reasons
to those we set out in the Consultation Paper. For instance, Professor Rosie Harding
wrote that there is “little justification for treating persons who sign on behalf of a
testator differently from witnesses”.
7.8 Some consultees agreed with the proposal but highlighted that this issue is not
particularly common. For instance, both DWF LLP788 and Northamptonshire Law
Society explained that in their experience it is rare that someone signs a will on behalf
of a testator. The Society of Will Writers and Estate Planning Practitioners agreed,
writing that many practitioners consider it to be good practice to avoid this - and that
some practitioners assume that there is already a restriction in place:
The Society of Will Writers and Estate Planning Practitioners technical advice team
often receive queries on who can sign on behalf of a person, as many practitioners
assume that there is a restriction, but can’t find what that restriction is, and are often
surprised to find out that there is no restriction.
In contrast, Lucy Langley 789wrote that she has had to sign on behalf of several clients,
although she explained that she only does this as a last resort.
7.9 Other consultees, such as Dr Richard Hedlund,790 noted that the difficulties this
proposal might cause, particularly in homemade will situations, are outweighed by its
role in addressing the risk of abuse (such as fraud or undue influence). Both Action on
Elder Abuse and Bircham Dyson Bell LLP Charities Team, who agreed with the
proposal, suggested that the change would need to be well publicised to avoid people
being caught out.
7.10 Two further points were made by consultees who agreed with our provisional
proposal.
(1) Two consultees argued that it should be clarified that a solicitor or other
professional who signs on behalf of a testator and who then seeks to charge for
the work of administering the estate under a clause in the will should not be
caught by the invalidity rule.
(2) A couple of consultees noted that under current case law, where a gift is left to
an office holder, and at the time of the testator’s death (but not when the will
was executed) one of the witnesses happens to hold the office in question, the
gift is not void. They suggested that statutory provision should be made to
preserve this position in the future.
7.11 Very few consultees disagreed with our provisional proposal or made other
comments. 791One consultee suggested that this issue does not arise sufficiently often
to require remedying by legislation,792 while another suggested that there might be
situations where it is “unavoidable” that the person signing the will on behalf of the
testator is a beneficiary under it.793 Withers LLP 794accepted that there is a risk of abuse
in allowing a person who signs a will on behalf of the testator to benefit, but weighing
against that is the “risk of accidentally frustrating the testator’s intentions”. Withers
LLP suggested that other doctrines - in particular, the requirement for knowledge and
approval - mitigate the risk of abuse, and so on balance did not support the proposal.
7.12 Professor Roger Kerridge disagreed with our provisional proposal, arguing that more
fundamental change was needed in this area: namely, that an entire will should be
void “if a beneficiary played a direct or indirect part in making, or preparing it”. The
Society of Legal Scholars - who agreed with the proposal - also suggested making
broader changes in this area, by removing the option for people to sign on behalf of a
testator at all and providing for “official authentication” instead.
7.13 The position of charities was raised by a couple of consultees. One, who disagreed
with the proposal, suggested that the change could increase the number of people
seeking ex gratia 795payments from charities:
If this was put into effect, there is perhaps a potential where the beneficiary was a
charity, for the witness to seek an ex gratia payment from the charity on the basis
that the testator had intended to make a gift to the witness and therefore a moral
obligation fell on the charity to agree an ex gratia sum. Consequently, this change
could result in an increase in the number of individuals seeking an ex gratia payment
from a charity. However, it is difficult to anticipate the level of any such increase and
even whether this is significant.796
7.14 The overwhelming majority of consultees who responded agreed with our provisional
proposal that a gift to the spouse or civil partner of a person who signs a will on a
testator’s behalf should be void.797
7.15 Consultees in favour included STEP, and CILEx (who wrote that 94% of members
responding to its survey agreed or strongly agreed with this proposal). Consultees
generally agreed with our reasoning, with one writing that the proposal would avoid
the “bizarre distinction” between a person who signs on behalf of a testator and a
witness. 798Other consultees argued that the proposed change is required to reduce
the risk of fraud and undue influence in these cases. CILEx argued that “married and
civil partnership couples often consider their assets as collective”, and Brian Clark799
wrote that the proposed change would ensure “that the person signing cannot benefit
vicariously”.
7.16 Wrigleys Solicitors LLP agreed that gifts to the spouse or civil partner of the person
who signed on behalf of the testator should be void, rather than the will being invalid.
They argued that:
Ensuring that a spouse or civil partner of a witness cannot benefit would appear to
be a sensible anti-fraud and anti-undue influence measure. It would arguably be a
step too far for any such infringement to render a Will invalid in its entirety, however.
There may be instances where the spouse or civil partner of the witness is set to
receive only a small cash legacy and the residuary estate is to pass to a number of
charities in lieu of family members to whom the testator had become estranged. In
such cases it would appear to be wholly inequitable for the charities to lose out and
for the estranged family members to instead benefit.
7.17 Another consultee noted that they had experience of this situation arising in practice:
A husband of a main beneficiary signed the will on behalf of the testator. The rest of
the beneficiaries were in fact also present and the will was uncontroversial so this
did not become an issue. We did feel at the time that in other circumstances this
could have been open to abuse.800
7.18 Very few consultees disagreed or made other comments in respect of this provisional
proposal. 801Some repeated their answer to the previous question, discussed above.
One consultee suggested that gifts to the spouse or civil partner of the person who
signed the will on behalf of the testator should be voidable (rather than void) to “allow
some discretion”.802
7.19 We have concluded that a person should not be able to sign a will on behalf of a
testator and benefit under that will. The risks of abuse in those situations, however
infrequently they might arise, is high. For example, the forgery of a testator’s signature
forms the main basis for cases for forgery in the wills context. In many of these cases,
expert handwriting evidence, based on samples of the testator’s signature, is part of
the evidence that establishes the forgery after the fact. 803Where a forgery was
committed by a person signing on behalf of the testator, such evidence would not be
available at all. Therefore, we do not think that the current position provides an
acceptable level of protection to testators.
7.20 Furthermore, there is no good justification for the difference in position between
witnesses and those signing on behalf of a testator.
7.21 We therefore recommend that gifts to those who sign on behalf of a testator, and to
the spouse or civil partner of a person who signs on behalf of a testator, should be
void.
7.22 However, this rule will not capture two specific situations raised by consultees.
(1) We agree with consultees that provision in a will for the remuneration of a
solicitor or other professional should not be void on the basis that they signed
the will on behalf of the testator. We discuss at paragraph 7.71 below how our
draft Bill makes provision for this.
(2) We also think that where there is a gift to an office holder, and the person who
signed the will on the testator’s behalf is the person who holds the office on the
death of the testator, the gift should not be void. We think this is already the
position in relation to witnesses under the current law. First, a gift to a witness
as a trustee is not made invalid under the current law,804 and gifts to office
holders will often be a gift to them in that capacity, that is, on trust for the benefit
of the organisation of which they are an office holder.805 Secondly, the invalidity
of a gift is based on the identity of the witness or beneficiary at the time the will
was executed: for example, if a witness marries a beneficiary after the will was
executed, the gift does not become invalid by virtue of the current rule in section
15.806 Accordingly, we do not need to make a specific exception for this
situation.
7.23 We make the following recommendation.
7.24 We recommend that a gift made in a will to the person who signs the will on the
testator’s behalf, or to their spouse or civil partner, should be void, but the will
should remain otherwise valid.
7.25 We discuss how our draft Bill implements this recommendation, and the
recommendation relating to cohabitants at paragraph 7.66 and following below.
7.26 Other than in certain (narrow) situations, a gift to one of the witnesses to a will is void,
although the will remains otherwise valid. In addition, a gift to the spouse or civil
partner of one of the witnesses to a will is void, if they were married to or in a civil
partnership with the witness at the time the will was executed.807
7.27 In the Consultation Paper,808 we set out our view that this rule should be preserved.
The purpose of this rule is to provide protection against self-interested witnesses who
might otherwise falsely affirm the valid execution of a will under which they would
receive a benefit. In other words, the rule preserves the objectivity of the witness to
ensure that they will honestly fulfil their duty to give “an account of the circumstances
in which the will was executed”,809 including if necessary to the court. This duty is
reflected by the fact that a witness to a will’s execution in the context of a probate
dispute is not a witness of a particular party, but rather is a witness of the court.
7.28 Furthermore, we explained that we agreed with the Law Reform Committee that
reforming the rule to remove the spouses of witnesses from its scope “would open
greatly the possibilities for abuse”.810
7.29 In fact, we argued that the potential for conflicts of interest, which the rule is designed
to address, could arise in respect of further categories of people.
(1) First, we argued that the rule should be extended to cover a cohabitant of a
witness. A significant proportion of the adult population cohabit without being
married or in a civil partnership, 811and we argued that there is no good rationale
for treating them differently to a witness’s spouse or civil partner in this context.
We therefore provisionally proposed that a gift in a will to the cohabitant of a
witness should be void.812 In doing so, we acknowledged that extending the rule
in this way would require a definition of “cohabitant”. We suggested that
“cohabitant” should be defined to be a person who, at the time the will was
executed, was living in the same household as the witness, and was living in a
relationship akin to that of a spouse or civil partner.813
(2) Secondly, we queried whether the rule should cover any other members of the
witness’s family. We invited consultees’ views as to whether gifts to the parents
or siblings - or other family members - of a witness should be void.34 We asked
consultees to specify their views as to which, if any, other family members of
witnesses should be included within the rule.
7.30 We also discussed the position of a cohabitant, or another family member, of a person
who signs a will on behalf of a testator. We provisionally proposed that any change to
the scope of the invalidity rule in the context of witnesses (so as to include cohabitants
or other family members) should be replicated in respect of those who sign on behalf
of the testator.35
7.31 Below, we consider consultees’ views in respect of the three related questions we
asked on this topic in the Consultation Paper, before discussing our recommendations
for reform.
7.32 A significant majority of the consultees who responded agreed with our provisional
proposal that a gift in a will to the cohabitant to one of the witnesses to the will should
be void.36 The main reasons given by consultees aligned with those we expressed in
the Consultation Paper, including to prevent fraud, to reduce the risk of undue
influence, and to make sure witnesses are independent.
7.33 Some consultees wrote that this extension to the rule would be welcome in order to
bring cohabitants in line with spouses and civil partners. For instance, the Law Society
wrote that:
An increasing number of households are cohabitants and reforming the law in this
way will bring this important safeguard into the 21st century. It will be important to
ensure that the definition for cohabitants is appropriate and reflects other areas of
law as much as is reasonable.
Others including STEP agreed, with one consultee arguing that the change would be
“an appropriate mechanism to safeguard testators that reflects changes in social and
family patterns in recent decades”.37 Furthermore, one firm of solicitors argued that as
cohabitants may have a claim for provision under the Inheritance (Provision for Family
and Dependants) Act 1975, it would be consistent for them to be provided for “in
relation to the execution provisions” in the way our provisional proposal suggested.38
7.34 A few consultees agreed with the provisional proposal, but suggested that there will
be evidential or practical difficulties in applying the invalidity rule to cohabitants. Some
of these comments focused specifically on the definition of cohabitation, which we
discuss in the section below. Other comments were more general, pointing out, for
instance, that because cohabitation is not a legal relationship (unlike marriage or civil
partnership), it will be difficult to pin down when cohabitation commenced, no matter
which definition is used. For example, a solicitor asked a series of questions as
follows.
Who is to say when a will is proved, who was co-habiting with whom when the will
was signed? How would you even know to make the enquiry?814
One firm of solicitors, Mishcon de Reya LLP, agreed, suggesting that this provisional
proposal might only be enforceable if witnesses were required to include their address
on their attestation.
7.35 Nevertheless, most consultees who noted the potential evidential difficulties that might
arise in respect of cohabitants concluded that the proposal was a sensible one. The
Chancery Bar Association wrote that -
although this proposal might in some cases involve evidential difficulties, we
consider that it would be anomalous if the disqualification of the spouse or civil
partner of a witness to a will from taking a gift under the will were not extended to
the cohabitant of a witness.
7.36 Lord Walker of Gestingthorpe supported the provisional proposal as a “natural
extension” of the invalidity rule, but suggested that the rule is relatively easy to
circumvent. 815Other consultees agreed with the extension of the rule to cohabitants,
but on the basis that there is a power to save gifts in cases of genuine mistake by the
testator.816
7.37 Only relatively few consultees disagreed with our provisional proposal or made other
comments. 817Some argued against the proposal on the basis that cohabitation is too
difficult a concept to define. Other consultees explained that they were split on the
issue. For instance, Mills & Reeve LLP818 wrote that some of their lawyers agreed with
the proposal but wondered how cohabitation would be tested, while others thought
that it would penalise people who are ignorant of the law. The Association of
Corporate Trustees accepted that the proposal might counteract or avoid fraudulent
behaviour, but suggested that:
the position needs to be absolutely clear so that the will maker knows exactly who to
ask to witness the will and legitimate gifts are not void as a result of ignorance when
the will is witnessed. There are situations where it is difficult to find legitimate
witnesses in a short space of time.
7.38 Furthermore, one firm of solicitors argued that this change would make “checking
executed wills more difficult and time consuming and we are not convinced [the] risks
outweigh the additional burden”. 819Another consultee argued that a cohabitant does
not have rights to their partner’s estate on separation, nor are they recognised under
the intestacy rules, and so “it seems unfair to change laws to potentially take benefits
away from cohabitees and yet to be seen as resisting change that confers rights on
them”.820
7.39 Consultees generally agreed that “cohabitant” needs careful definition in order to
reduce the potential for disputes as far as possible.
7.40 Many consultees, including Dr Juliet Brook, 821argued in favour of simply using the
definition from the Inheritance (Provision for Family and Dependants) Act 1975. One
consultee suggested that this would create desirable consistency across the law
relating to succession.822
7.41 However, other consultees - such as the Chancery Bar Association - specifically
agreed with our suggestion in the Consultation Paper to adopt the definition from the
1975 Act but not to include a time limit in that definition. Dr Richard Hedlund 823argued
that the two-year period required under the 1975 Act serves a different purpose, in
limiting who is eligible to bring a claim for financial support from an estate; in contrast,
the purpose of the invalidity of gifts rule is to prevent abuse, so “there is no need for
such a limitation when it comes to cohabitants”.
7.42 Some consultees made other suggestions. For instance, Dr Brian Sloan 824noted that
the definition we provisionally suggested in the Consultation Paper might exclude
some people who would be considered to be in an “enduring family relationship” in the
different context of the Adoption and Children Act 2002.
7.43 Finally, a few consultees highlighted particular issues which need consideration in
defining cohabitation for these purposes. For example, one firm of solicitors noted
many of their clients have become more international:
with properties in several jurisdictions and spouses may spend long periods
separately, with one living in one property and the other living in another. This if
often not only for work reasons, but a result of lifestyle choices and yet they would
still regard themselves as co-habiting. If ‘co-habitant’ is defined as a person who
lived in the ‘same household’ as the relevant person, the definition of ‘same
household’ would require careful consideration, and should possibly recognise the
possibility that a co-habiting couple may have more than one such household in
different jurisdictions.825
7.44 The consultees who responded to our question as to whether gifts in a will to the
parents, siblings or other family members of a witness to the will should be void were
broadly split over whether such an extension of the invalidity rule would be sensible.826
7.45 Some consultees argued that certain family members of a witness should be caught
by the rule for similar reasons to the rationale for gifts to a spouse or civil partner of a
witness being void. Consultees such as Dr Richard Hedlund 827suggested that the
extension of the rule to close family and relatives of a witness would help prevent
abuse, such as fraud and undue influence. He argued that the extension of the rule
would “send a clear signal that the witnesses are meant to be wholly independent”.
Another consultee, the consumer protection group Which?, agreed that “the witnesses
should be strangers to the beneficiaries”, and argued that “the best way to prevent
fraud, abuse and undue influence is to prevent people from witnessing wills in which
close family members have an interest”.
7.46 Consultees who favoured an extension of the invalidity rule suggested a range of
different categories of family member who should be included. Many agreed that the
parents, children and siblings of the witness should be caught. However, several
consultees recognised that drawing the rule too widely might increase the “likelihood
that a person who the testator genuinely intended to benefit may lose out”.828
Furthermore, it was suggested that including too many categories of family member
would require significant investigatory work to avoid being caught out, which would “be
more complex and time consuming, and this seems disproportionate to the risk
involved”. 829In contrast, other consultees suggested drawing the scope of the rule
more widely, with some arguing for the inclusion of all family members or relatives.
One consultee proposed a different approach, where certain family members (such as
half-siblings) are included but only where their relationship to the witness was known
to the testator, with the proof of showing that the testator knew of the relationship
being on the person challenging the gift.830
7.47 A significant number of consultees, however, argued that any further extension to the
invalidity rule to catch family members of the witness would be going too far. Some
noted that the potential for abuse in these cases can be addressed by other
approaches or remedies, such as under our proposals about undue influence.831
Furthermore, the Bar Council contended that the risk of fraud is lower in the case of
family members:
The risk of fraud by the witness with the intention of benefiting family members must
be significantly smaller than the risk of fraud where the benefit is to the witness or
his or her spouse. In our view there is an unquantifiable but significant risk that will
cause more injustice than it saves.
7.48 Consultees argued that including family members would unduly restrict testamentary
freedom. For instance, Professor Rosie Harding argued that -
expanding the range of individuals who would be excluded the possibility of
inheritance beyond those in voluntary intimate relationships (spouse, civil partner,
cohabitant) may unduly restrict those who seek to write a will without the assistance
of a legal professional from satisfying the formalities.
She argued that this would represent an “overly cautious step that might unduly
restrict testamentary freedom”. Another consultee agreed that this would be a “step
too far”, and that this restrictive approach would create disproportionate practical
difficulties for testators (particularly in cases of homemade wills).832
7.49 One of the key reasons given by consultees who were against expanding the rule was
the risk of inadvertent mistakes being made in will-making. For example, the Society
of Will Writers and Estate Planning Practitioners wrote that “whilst it is possible to
have controlling parents and siblings, this will likely only punish testators making
homemade wills who would not be fully aware of this rule”. STEP and the Law Society
made similar arguments, with the Law Society writing that “it would be far too easy for
testators to fall foul of this rule, which would then have unwanted consequences of
nullifying well-intended gifts”. One firm of solicitors, who was divided on this question,
agreed that the rule would potentially penalise a family member of a witness when the
testator clearly wanted that individual to benefit.833 This issue could be potentially
exacerbated, as one consultee pointed out, by the fact that a witness does not need to
know the contents of a will, increasing the risk of a genuine mistake being made.834
7.50 Finally, other consultees argued that expanding the invalidity rule to catch family
members of witnesses might disincentivise will-making. The District Probate
Registrars argued that narrowing down the choice of witnesses for people “would
have a negative impact on numbers of people choosing to make a will”, particularly
those who are elderly, disabled and housebound. Dr Juliet Brook agreed, 835as did
Bircham Dyson Bell LLP Charities Team, who gave an example of the type of situation
which might become problematic for testators:
We are aware anecdotally that family members from another “branch” of the family
may be asked to witness wills (eg a testator may ask their brother and sister-in-law
to witness, where the estate goes to the testator’s children and remoter issue) and
we are not sure that such circumstances should necessarily be discouraged.
7.51 We also provisionally proposed that - if the law is changed so that a gift to a
cohabitant (or other family member) of a witness is void 836- a gift to the cohabitant (or
other family member) of a person who signs the will on behalf of the testator should
also be void. 837A number of consultees made general comments in response to this
question, for example expressing views on the definition of “cohabitant”. We have
taken those views into account at paragraphs 7.39 to 7.43 above. In this short section,
we consider the views of consultees in relation to aligning the position of witnesses
and those signing on behalf of the testator in relation to cohabitants and other family
members.
7.52 The significant majority of those consultees agreed with our proposal. 838Consultees in
favour included the Bar Council, Which?, and the Society of Will Writers and Estate
Planning Practitioners. Several consultees argued that this change would create
desirable consistency: for instance, one firm of solicitors wrote that “it seems sensible
for the rules about signatories and the rules about witnesses to be consistent in this
manner”. 839The Chancery Bar Association also agreed, although it noted that the
same definition of “cohabitant” should apply as that which applies in the context of
witnesses.
7.53 Others commented on the risk of abuse that can arise in these situations, with another
firm of solicitors arguing that “there is the same level of risk of undue influence from a
cohabitee or long-term partner as there is from a spouse”. Indeed, one consultee
argued that it is more important for the invalidity rule to catch the cohabitant of the
person signing on behalf of the testator than of the witness, as this situation is “more
likely to lead to abuse”.
7.54 Some consultees agreed with our provisional proposal, but suggested that we should
consider going further in this regard. For instance, STEP asked whether the rule could
be extended further to “include others over whom the witness or signatory might have
dominion, such as a former spouse or cohabitee living with them or a lodger”.840
7.55 Only very few consultees disagreed with our provisional proposal.841 Most did so on
the basis that they disagreed with our related proposal that a gift to the cohabitant of a
witness to a will should be void. For instance, one consultee argued that “cohabitee is
inadequately defined and too vague”.842
7.56 We continue to believe that a gift to a cohabitant of a witness should be valid in a new
Wills Act. We do not consider there to be any persuasive rationale for treating a
cohabitant of a witness any differently to a spouse or civil partner in this area. Allowing
the cohabitant of a witness to be a beneficiary under the will undermines the
impartiality of the witness, and gives rise to a risk of abuse. Although we agree with
consultees that there may be some evidential difficulties in looking back at the living
arrangements of a witness as they were when a will was executed, we do not think
these issues will arise often or are otherwise insurmountable. More fundamentally, we
agree with consultees who argued that this concern does not outweigh the benefits of
aligning the position of cohabitants with spouses and civil partners in this area.
7.57 That said, we do acknowledge the need to adopt the right definition of “cohabitant” in
this context. As we note above, in the Consultation Paper we suggested that
“cohabitant” should be defined to be a person who, at the time the will was executed,
was living in the same household as the witness, and was living in a relationship akin
to marriage or civil partnership.843 This suggested definition drew on the meaning of
cohabitant as it then was in sections 1A and 1B of the Inheritance (Provision for
Family and Dependants) Act 1975, although it did not include any requirement for the
couple to have lived together for a specific period of time.
7.58 We continue to think that a required time period of cohabitation is not necessary or
appropriate in the context of the invalidity rule. The time requirement in the 1975 Act
serves a different purpose: namely, delimiting whether an individual had a sufficient
connection to a deceased person for it to be reasonable for them to expect provision
from their estate. Conversely, the invalidity rule is directly concerned with preserving
the impartiality of a witness and protecting testators (by reducing the risk of abuse).
We therefore think a broad definition of “cohabitation” is appropriate for these
purposes, along the lines of our suggested definition in the Consultation Paper.
7.59 Having considered consultees’ views, we do not recommend that the invalidity rule
should extend to any other categories of family member of a witness to a will. We do
not think that doing so would be proportionate, either to the risk such people may pose
or the difficulty it could cause testators in finding witnesses to their will.
7.60 We agree with the comments made by consultees that including family members in
the rule (even limited to close family members) could make it more difficult for a
testator to find witnesses to whom they do not wish to give a gift in their will. Where a
will is being executed in a professional practitioner’s office, we do not think this will
pose too much of a problem, as members of staff often act as witnesses. However,
where a will is being prepared professionally but is executed at a person’s home,
following the directions of the solicitor or will writer, or in the case of a homemade will,
we think an extension to the invalidity rule could be problematic and potentially create
an unreasonable barrier to will-making. We agree with consultees who pointed out
that this issue might be particularly acute in the case of older testators, who might be
more socially isolated.
7.61 We also consider that extending the rule to cover family members risks testators
making inadvertent mistakes. Furthermore, we note that there was no consensus
about which family members should and should not be included in the scope of any
extension. We agree with Richard Wallington844 that, wherever the line is drawn -
there will still be possibilities of abuse where relatives sufficiently distant to be
outside the line are benefited, and there will be persons inside the line where
someone has acted innocently as a witness in the absence of anyone else available,
but the gift is rendered invalid.
7.62 On reflection, we therefore consider that the line should be drawn in a limited way, so
as to apply to spouses, civil partners and cohabitants of witnesses, but not to other
family members. As several consultees pointed out, other doctrines and remedies
exist to prevent cases of fraud or undue influence of the testator; we think these
doctrines are sufficient in relation to other family members.
7.63 As we discussed above, at paragraph 7.24, we recommend that a gift to a person who
signs on behalf of a testator, or to that person’s spouse or civil partner, should be void.
We also consider that a gift to the cohabitant of a person who signs a will on behalf of
a testator should be void. This change desirably aligns the position between witnesses
and people who sign a will on a testator’s behalf, recognising that there is no good
rationale for treating spouses and civil partners any differently from cohabitants in this
context. We agree with consultees that the same definition of cohabitation must apply
in the context of the cohabitant of a person who signs a will on a testator’s behalf and
the cohabitant of a witness to a will.
7.64 We therefore make the following recommendation.
7.65 We recommend that a gift made in a will to the cohabitant of a witness to the will, or
to the person who signs the will on the testator’s behalf, should be void, but the will
should remain otherwise valid.
7.66 Our draft Bill for a new Wills Act implements this recommendation, along with
Recommendation 13 (which we discuss above), in clause 12.
7.67 Clause 12(1) provides that a disposition in a will is invalid if it is to:
(1) the “authorised individual” (who is a person who signs the will in the testator’s
presence, under the testator’s direction and on the testator’s behalf);
(2) a witness who attested the will; or
(3) the spouse, civil partner or cohabitant of the authorised individual or the
witness.
A disposition which is invalidated under this clause will also be invalid in respect of
someone claiming under any of the above individuals (such as where a witness who
attested the will dies, and their personal representative or executor claims under
them), pursuant to clause 12(4).
7.68 Clause 12(2)(a) provides that dispositions are not invalid where the court has
exercised the dispensing power in relation to the will. In dispensing power cases, the
will was not made in compliance with the formality requirements. Accordingly, we
consider that it is difficult - and indeed incorrect - to say that someone was a witness
or signed on behalf of the testator under the formality requirements outlined in
Schedule 2 to the draft Bill. Furthermore, the dispensing power relates only to the
formality requirements, and does not allow for other substantive requirements (such
as the requirement of capacity, and the lack of undue influence) to be dispensed with.
If concerns of undue influence or fraud are raised in cases involving the dispensing
power, those concerns will be considered and addressed by the court, and the will
would only be given effect if those concerns are dismissed.
7.69 Clause 12(3) preserves the provision in section 1 of the Wills Act 1968 and paragraph
3(b) of Schedule 4 to the Civil Partnership Act 2004, which provides that a gift to a
witness (or a person connected to the witness) is not invalid if the will would have
been duly executed even without that witness being involved. This exception ensures
that where there are at least two other disinterested witnesses in the execution of the
will, the signature of an additional witness who is connected to a beneficiary will not
impact on the validity of the gift to the connected person. Our draft Bill does not
extend this exception to people who signed the will on behalf of the testator, because
in no case will a person who signed on the testator’s behalf be superfluous to the
formality requirements in the way that additional witnesses can be.
7.70 Clause 12(5) makes further provision in relation to the meaning of “disposition”, and
also defines “cohabitant”. The definition of cohabitant in our draft Bill refers to Part 4 of
the Family Law Act 1996. Under section 62(1)(a) of the 1996 Act, cohabitants are “two
persons who are neither married to each other nor civil partners of each other but are
living together as if they were a married couple or civil partners”. This captures the
broad definition of “cohabitants” which we think is appropriate for this context, but
(unlike under the Inheritance (Provision for Family and Dependants) Act 1975) without
requiring that cohabitation to have been for a specified period of time.
7.71 At paragraph 7.22 above, we note that we agree with consultees that provision in a
will for the remuneration of a solicitor or other professional should not be void on the
basis that they signed the will on behalf of the testator. Paragraph 15 of Schedule 4 to
our draft Bill amends section 28 of the Trustee Act 2000 to achieve this. Moreover,
clause 12(5)(a) preserves the existing exceptions that the invalidity rule only applies to
gifts of the beneficial interest (meaning that a gift to a trustee, which conveys the legal
interest, will not be captured by it), and does not apply to gifts in the repayment of a
debt or for remuneration of services.
7.72 We have considered above how a gift to a witness or to a person signing a will on
behalf of a testator - or to their spouse, civil partner or cohabitant - will be void. We
now look at whether there should be a provision to allow these void gifts to be “saved”
in specific circumstances.
7.73 In England and Wales, no such “saving” provision currently exists. However, in some
Australian jurisdictions, the rules prohibiting gifts to witnesses have been reformed so
that the gift is valid if the persons who would otherwise benefit under the will have
either consented in writing, or if the court is satisfied that the gift was made freely and
voluntarily and that the testator knew of and approved the gift.845
7.74 In our Consultation Paper, we were mindful of the disadvantages of an exception of
this kind, particularly that it could weaken the protection afforded to the testator. 846The
witness, who would have been prevented from benefiting under the will, may be able
to convince the court that the testator knew and approved of the gift and made it
voluntarily. The discretion afforded by the rule may also lead to increased litigation.
7.75 However, we acknowledged in the Consultation Paper that the rule may frustrate a
testator’s intentions, especially if the will was prepared without any professional advice
and the testator was unaware of such a rule. We also recognised that the rationale of
introducing a discretion in order to give effect to a testator’s wishes in this context
aligned with our provisional proposal, and now recommendation, to introduce a
dispensing power in relation to the formality requirements generally. Furthermore, one
of the overall objectives of this project is to support testamentary freedom.
7.76 We therefore asked for consultees’ views on whether it should be possible, in defined
circumstances, to save a gift to a witness that would otherwise be void.847
7.77 The majority of consultees were not in favour of introducing the possibility to save a
gift to a witness that would otherwise be void.848
7.78 Consultees who were in favour of introducing a saving power felt that it facilitated will-
making and would avoid situations in which a gift fails because the testator made an
honest mistake, for example where spouses inadvertently witness each other’s wills.
Consultees believed that the court should look at the circumstances surrounding the
execution of the will, and the power should be used at the court’s discretion on a case-
by-case basis, or should be used in limited circumstances.
7.79 Professor Rosie Harding thought that “it is important that the law relating to wills
operates to support, rather than frustrate, the testator’s wishes”. Other consultees
agreed, believing that the testator’s wishes should be upheld in the absence of fraud
by the witness.
7.80 Consultees also outlined specific situations in which the harsh invalidity rule relating to
gifts would have an inequitable outcome. One example given was if an elderly testator
with no family asked two lifelong friends to act as witnesses, then these witnesses
should be given the opportunity to prove why their gifts should be upheld. Another
example was that the gift should be saved if the will was prepared by a professional,
who had assessed the testator’s capacity and could prove the testator intended to
benefit a particular witness.
7.81 Consultees who were against reform were concerned that a saving provision could
increase litigation and costs, with numerous beneficiaries contesting otherwise void
gifts left to them in a will.
7.82 Consultees argued that a saving provision would undermine the protection against
fraud and undue influence, and weaken the protection given to testators. Many
worried that the saving power could be abused by witnesses claiming that they did not
know about the existence of the gift, or that the testator knew and approved of the gift
to them, and made the gift voluntarily.
7.83 Some consultees were concerned that a saving provision would complicate the
invalidity rule and introduce uncertainty, confusing will-makers when they decide who
should witness their will.
7.84 Several consultees suggested that a saving provision should be covered by the
dispensing power, so that it could act to save individual gifts. Others outlined other
mechanisms currently available to save gifts to beneficiaries, such as beneficiaries
agreeing to vary the disposition of the testator’s estate in the way in which the testator
had provided for in their will. Charity consultees mentioned that they could, in a
situation where the charity was the beneficiary under the will, agree to make ex gratia
payments to those who would have otherwise benefited under a will.
7.85 We acknowledge consultees’ concerns regarding the introduction of a saving power,
particularly in relation to the potential such a change has to increase litigation.
However, given that we recommend that the invalidity rule be extended in a number of
ways, we believe that a saving power will provide important balance, between
protecting testators from fraud and undue influence and supporting testators’
intentions. A witness or person who signed the will on the testator’s behalf (or their
spouse, civil partner or cohabitant) should be able to ask the court to validate a gift
that was genuinely intended to be given to them by the testator, and would
inadvertently fail because of the invalidity rule.
7.86 Accordingly, we recommend that a power for the court to save invalid gifts should be
introduced. Like the dispensing power, we think that it is appropriate that this power
should only be exercisable by the court. Anyone could make an application for the
court to exercise its power. In practice, however, we expect that someone would only
apply if they would - absent the invalidity rule - receive the gift, and so applications
are most likely to be made by the beneficiary of it or someone claiming under them.
7.87 Although our recommendation draws on the similar saving powers in Australian
jurisdictions, our recommended saving power does not rest on the applicant proving
that the testator knew and approved of the gift or made the gift in the absence of
undue influence. These are requirements for a valid will in any event and so should
always be able to be established.
7.88 The main rationale for preventing a witness or a person signing on behalf of the
testator (or their spouse, civil partner or cohabitant) from benefiting under the will is to
ensure that they fulfil their role independently, such that their evidence about the
execution of the will can be reliable. The saving power should therefore not be able to
be exercised where such a person has not fulfilled their role independently, either in
their involvement in the execution of the will or proving it after the testator has died.
Accordingly, to exercise the power, the court will need to be satisfied that it is just and
reasonable to do so, having regard to the conduct of the witness or the person who
signed the will on behalf of the testator.
7.89 We do not think any increase in litigation under the saving power will be as significant
as consultees feared. In part, this is because our recommendations to extend the
scope of the invalidity rule are more limited than some consultees were concerned
might be the case.
7.90 We note that a saving power for otherwise void gifts needs to be dealt with separately
to the general dispensing power of the court, discussed in Chapter 6. The dispensing
power operates in the situation where a will itself is invalid, whereas the saving power
for gifts only operates on an invalid gift in a valid will. Where the court has exercised
the dispensing power in relation to a will, no gifts in that will would be invalid under the
invalidity rule, because there has not been a will that has been witnessed or signed on
behalf of the testator by another person. Accordingly, there will be no need for the
saving power to operate.
7.91 We therefore make the following recommendation.
7.92 We recommend that the court should be given the power to save a gift to a witness,
a person who signs the will on the testator’s behalf, or such a person’s spouse, civil
partner, or cohabitant that would otherwise be void, if the court considers it just and
reasonable to do so, having regard to (among other things) the conduct of the
person in relation to the execution and/or proving of the will.
7.93 In our draft Bill, the power to save an otherwise invalid disposition is contained in
clause 13.
7.94 Clause 13(1) allows a person to make an application to the court for an order in
circumstances where a gift in a will would otherwise be invalidated by clause 12.
Under clause 13(2), the court can disapply clause 12 (which, as we explain at
paragraph 7.67 above, contains the invalidity rule).
7.95 Under clause 13(2), the court may only make the order to save a gift if it is satisfied
that it is just and reasonable to do so. Under clause 13(3), the court must consider the
behaviour of the relevant person in relation to the making of the will and, if relevant,
proving the will after the testator has died. For example, if the beneficiary of the gift did
not, in the view of the court, provide honest evidence about an aspect of the will’s
validity, the court should decline to exercise the power. We consider that this
requirement to consider essentially improper behaviour will only allow the invalidity of
gifts to be waved where there has been no impropriety on the part of the relevant
witness or the person who signed the will on the testator’s behalf (or their spouse, civil
partner or cohabitant), and that the testator made the gift freely and voluntarily.849
8.1 In order to make a valid will, a testator must comply with certain formalities. These
formalities are outlined in section 9 of the Wills Act 1837. We consider them in detail in
Chapter 5.
8.2 These long-standing requirements originally derived from those in the Statute of
Frauds 1677, 850and have only been subject to minor amendments since being enacted
in 1837. They apply simply and clearly to paper documents, the only type of
documents in existence when they came into force.
8.3 As we explain in Chapter 5, we do not recommend any fundamental changes to the
formality requirements. 851As under the current Wills Act 1837, a person making a will
under the draft Bill for a new Wills Act will be required to make a will in writing, sign
the will or acknowledge their signature on the will in the presence of two witnesses,
who will then each be required to sign or acknowledge their signatures.
8.4 These formality requirements are an important consideration in relation to the
possibility of electronic wills, meaning electronic documents that are executed and
stored electronically. As a matter of law, are electronic wills able to satisfy the
requirements in section 9, or any restatement of section 9, by way of interpretation?
And, as a matter of policy, should electronic wills be capable of formally validity?
8.5 Electronic documents and electronic execution are increasingly accepted in a wide
range of contexts. This is something the Law Commission has explored in other
projects, including in our project on the Electronic Execution of Documents.852 It has
also been considered in depth by other bodies, including the Industry Working Group
on the Electronic Execution of Documents,853 which Government set up following our
recommendation in our Electronic Execution of Documents project.854
8.6 Nevertheless, we have given careful consideration to whether electronic execution
should be accepted in the wills context. This is because wills are unique. Wills are
unilateral documents regularly made without the assistance of any professionals, or
any third party at all, other than the two witnesses to the testator’s signature. Unlike a
contract, there is no counterparty; and unlike a Lasting Power of Attorney, there is no
state involvement at the time the will is made, and no requirement of registration. Wills
are revocable until the testator’s death, and until that time they can be kept entirely
private by the testator. A will cannot be proved as valid until after the testator dies.
8.7 Wills are therefore often not scrutinised as to whether they have been validly made,
and not acted upon by any other party, until months, years or even decades after their
execution. The assessment of a will’s validity must - and can only - take place at a
time when the testator cannot provide any evidence about how the will was made.
8.8 The risks of fraud and forgery in the wills context are also atypical. Rather than identity
theft by strangers, fraud and forgery is most often committed by someone close to the
testator, such as a family member, friend, or carer. That forgery is highly unlikely to
come to light during the life of the testator.
8.9 Accordingly, wills operate in a context that is different to the transactional documents
in respect of which electronic execution is increasingly commonplace. Any problems
or concerns regarding contracts might come to light quickly as the parties act to fulfil
the contract, meaning that the validity of the agreement can be tested with the benefit
of evidence from all the parties involved. They are certainly not likely to come to light
after the death of a principal party entering into the contract. That is not the case for
wills.855
8.10 In this project, we consulted on the possibility of electronic wills twice, both in our 2017
Consultation Paper and our 2023 Supplementary Consultation Paper. In both papers,
our provisional conclusion was that electronic wills should not be permitted by way of
interpretation of the section 9 requirements. In both consultations we were of the view
that, if electronic wills are enabled, they should be subject to bespoke or additional
formality requirements. Given the strong support for this approach among consultees
in 2017, we did not revisit this point with consultees in the Supplementary
Consultation Paper, but instead concluded that a new Wills Act should make it clear
that the formality requirements for paper wills should not simply apply to electronic
wills.856
8.11 Consultees’ attitudes towards electronic wills changed markedly between our original
consultation in 2017 and the supplementary consultation in 2023. That interval of time
obviously spans the COVID-19 pandemic in 2020 with all the consequential changes
to dealing electronically and virtually with business generally. Although the majority
view is still not in favour of electronic wills, there has been such a significant shift in
views such that we consider that the support for electronic wills, and the expectation
that they should be permissible, will only grow.
8.12 Accordingly, we recommend that electronic wills should be expressly permitted under
a new Wills Act. Because whether a will is in paper or electronic form is exclusively a
matter of relevance to the formality requirements, so long as the formality
requirements are met, paper and electronic wills will be equally valid, and will be able
to alter, revoke and revive one another. Other aspects of wills law, including the law
governing substantive validity and interpretation, will apply in the same way to both
paper and electronic wills.
8.13 However, in order to be formally valid, we recommend that electronic wills should be
required to comply with certain additional criteria.
8.14 As we explain in this chapter, our recommendations seek to ensure that the formality
requirements for electronic wills provide the equivalent (but not a higher) level of
protection to testators as the formality requirements do for paper wills. In order to
achieve this equivalence, we recommend that electronic wills should be subject to the
same formality requirements which apply to paper wills, but should additionally be
subject to three requirements about the reliability of the technology used. That is, that
a reliable system must be used so that -
(1) the testator (or person signing on the testator’s behalf) and the witnesses are
linked to their signatures at the time signing;
(2) the original or authentic will is identifiable from copies of it; and
(3) the original or authentic will is protected from unauthorised alteration or
destruction.
As we explain in this chapter, we consider that equivalence necessitates these three
further requirements for electronic wills, because we think that these matters are all
implicitly demonstrated by the production of a paper will.
8.15 But we do not recommend the means or technology necessary to establish these
three criteria. Our recommendations set the standard necessary but are technology
neutral as to form.
8.16 However, we further recommend that a new Wills Act should contain a regulation-
making power, under which the Secretary of State may, by statutory instrument,
outline how electronic wills may or must meet the formality requirements. If
Government considers that specific technological standards are necessary to ensure
that electronic wills provide equivalent protection to paper wills, or are necessary to
provide certainty, it will be able to legislate to set out these standards.
8.17 In order for the core formality requirements to apply sensibly to electronic wills, we
also recommend that, in the case of electronic wills, the presence of the witnesses
should be able to be satisfied by remote presence.
8.18 Finally, we recommend that electronic wills should be capable of being altered,
revoked and revived according to the same rules as paper wills. Although we have
given specific consideration to whether electronic wills should be capable of
revocation by destruction, we have concluded that they should be, again according to
the same criteria as paper wills.
8.19 Section 9 of the Wills Act 1837 outlines the formalities necessary to make a valid will.
As the context of wills is unique, so are the current requirements for them to be
accepted as valid as compared to other types of documents.
8.20 To be valid, a will must be in writing. It must be signed by the testator (or someone on
the testator’s behalf and in their presence) in the presence of two witnesses, and it
must appear that the testator intended by their signature to give effect to the will. If the
testator has already signed the will, rather than signing in the presence of the two
witnesses, the testator can acknowledge their signature in the witnesses’ presence.
Each witness must then attest and sign the will or acknowledge their signature in the
presence of the testator.
8.21 Although statutory requirements of “writing” and “signature” are now routinely met in
other contexts by electronic documents, it remains uncertain whether courts would
accept an electronic will as satisfying the requirements in section 9. In particular, it is
unclear whether an electronic signature would meet the requirements for the testator
and witnesses to sign. We know of no case law where the point has been raised.
8.22 We think it is beyond question that an electronic will could satisfy the requirement in
section 9 of the Wills Act 1837 that a will be in writing. The Wills Act 1837 imposes no
restriction on the material to be used, and the Interpretation Act 1978 defines “writing”
broadly to include “typing, printing, lithography, photography and other modes of
representing or reproducing words in a visible form”. 857Accordingly, we consider that an
electronic will, where the text of the will was displayed on the screen, would satisfy
this requirement.
8.23 It is unclear whether an electronic signature could satisfy the requirement in section 9
of the Wills Act 1837 for the will to be signed by the testator (or a person on their
direction) and two witnesses.
8.24 As we explained in the Supplementary Consultation Paper, electronic signatures have
increasingly been held to be valid in other contexts. As the Court of Appeal explained
in Hudson v Hathway, “there is ... a substantial body of authority to the effect that
deliberately subscribing one’s name to an email amounts to a signature”. 858Moreover,
as the Court of Appeal explained, the fact that electronic communications could not
have been contemplated when any specific statutory formality requirement was
enacted is not a bar to determining that a form of electronic communication could
satisfy the requirement, given “a general principle of statutory interpretation that an
Act of Parliament is regarded as ‘always speaking’”.859
8.25 However, our preliminary conclusion in the Consultation Paper was that electronic
execution would most likely not be accepted under the Wills Act 1837. 860On revisiting
the issue in the Supplementary Consultation Paper, we thought that the point is simply
unclear.861
8.26 We do not think the question is answered by the Electronic Identification and Trust
Services for Electronic Transactions (Amendment etc) (EU Exit) Regulations 2019
(“UK eIDAS”). In our view, UK eIDAS, like its EU antecedent the eIDAS Regulation,
does not oblige the courts to recognise electronic signatures if electronic signatures
do not satisfy other legal requirements.862 That is, if the law of wills attaches special
significance to handwritten signatures, then UK eIDAS does not require the
recognition of electronic signatures in the context of wills.
8.27 Special significance of handwritten signatures would also, in our view, militate against
statutory interpretation simply determining that electronic signatures are sufficient.
8.28 This important point - whether the law of wills does attach special significance to
handwritten signatures - is arguable.
8.29 On one hand, the case of Lim v Thompson 863suggests that wills law does attach
special significance to handwritten signatures, with particular focus on the signature
being original. In that case, a photocopy of the testator’s signature was determined to
be insufficient. Judge Purle QC, sitting as a High Court Judge, considered that one of
the primary purposes of the Wills Act 1837 is to prevent fraud. The judge explained
that, given that the testator is not alive to testify, “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”. 864This case is far from conclusive on this
point and is in any case from 2009. However, our view in 2017 was that it suggested a
reluctance by the courts to accept anything other than an original handwritten
signature as able to fulfil the requirements in section 9 of the Wills Act 1837.865
8.30 On the other hand, seals866 and signatures created by a rubber stamp 867have long
been accepted as valid signatures under the Wills Act 1837. As we acknowledged in
the Supplementary Consultation Paper, these types of mark could be considered
analogous to electronic signatures: both can be described as original, but they are
created by devices which enable the signature to be added to the document by
anyone with access to the device.868
8.31 We therefore think this point remains unsettled.
8.32 In our view, the requirements under section 9 for the presence of two witnesses869
requires their physical presence. Although some commentators have disagreed with
this view, 870it has remained the view of the Law Commission, not only in this project
but also in our project on the Electronic Execution of Documents.871
8.33 We think that this point became clearer as a consequence of temporary amendments
made to the law during the COVID-19 pandemic. In order to facilitate will-making
during the pandemic, Government temporarily amended the Wills Act 1837 to allow
the presence of witnesses to be satisfied by “videoconference or other visual
transmission”. 872Such specific provision would have been unnecessary if it were not
otherwise thought that physical presence is required.
8.34 At the time of the Consultation Paper in 2017, the case for allowing wills to be made in
electronic form was relatively novel, particularly in England and Wales. There had
been little discussion about the possibility of electronic wills in this jurisdiction.873
Looking overseas, when electronic wills had been accepted as valid they were
accepted under dispensing powers, 874provisions which enable a court to recognise a
will as valid even though the formality requirements have not been complied with.875
One jurisdiction (Nevada, USA) had enacted legislation to recognise electronic wills,
but there was no evidence available to us of its provisions having been successfully
used.876
8.35 Nevertheless, in 2017 we saw our project as an opportunity to ensure that any future
provision for electronic wills would be introduced as smoothly as possible.
8.36 To strike the right balance between regulating electronic wills so that they would be
sufficiently secure while allowing flexibility so that the use of them could develop, we
suggested in the Consultation Paper that specially designed legal rules would be
necessary. We thought that these rules would be best made by the Lord Chancellor,
acting under a power in a new Wills Act to make provision for electronic wills by
statutory instrument. 877In addition to making this proposal, we asked consultees about
the demand for electronic wills, among other things.878
8.37 Because we thought the better approach was for electronic wills to be governed by a
specific legal regime, we did not think that they should be recognised as valid under
the existing requirements in section 9 of the Wills Act 1837. We therefore provisionally
proposed in the Consultation Paper that the Wills Act should make clear that
electronic signatures were not capable of fulfilling the ordinary formal requirement of
signing a will that applies to both testators and witnesses.879
8.38 In response to our 2017 consultation, consultees were not positive about electronic
wills. They did not think that the potential benefits of electronic wills outweighed their
perceived drawbacks, particularly in relation to the potential risks of fraud and undue
influence. Only a minority of consultees were supportive of our proposal to create an
enabling power which could allow the introduction of electronic wills. 880And consultees
overwhelmingly agreed with our provisional proposal that the Wills Act should confirm
that electronic signatures are not capable of fulfilling the ordinary requirements for
signing a will. 881In effect, the clear majority of consultees who responded to our 2017
consultation considered that legislation should close the door to the recognition of
electronic wills both now and in the future.
8.39 When we returned to the wills project in late 2022, having paused it in 2019, we
considered that consultees’ views on electronic wills could have changed.
8.40 The intervening years had seen huge developments in technology. They had also
seen both the increasing use of electronic documents and signatures for contracts and
increasing legal recognition of them, including as the result of the Law Commission’s
own work. 882During this time, the Industry Working Group on the Electronic Execution
of Documents883 called for “wholesale adoption” of electronic signatures by
Government for all purposes.884
8.41 During the COVID-19 pandemic, technology played an important role in facilitating
remote working. It also facilitated will-making, with video witnessing of wills permitted
to enable people to make wills while emergency restrictions and social-distancing
measures were in place.885 Other jurisdictions also responded to the COVID-19
pandemic by introducing provisions to enable electronic witnessing. In some cases,
they introduced permanent reforms to permit electronic wills, for example, in
jurisdictions in the United States, Australia and Canada.886
8.42 The case for electronic wills was not as novel as it once was. We therefore re-visited
the issue of electronic wills in our 2023 Supplementary Consultation Paper.
8.43 In the Supplementary Consultation Paper, we outlined our view that whether
electronic wills could satisfy the formality requirements in section 9 of the Wills Act
1837 remains uncertain.
8.44 We considered that the position should be clarified: in line with our provisional
proposal in 2017, we explained that we continued to think that the law should be
reformed to exclude the possibility of the current formality requirements being
interpreted to allow electronic wills to be valid. We thought this clarification is
necessary to exclude the possibility of the most basic, and easily amended, types of
electronic documents (including those editable on word-processing software and basic
PDF documents) and electronic signatures (including names typed into a document or
signatures copied into a document) from satisfying the requirements for a valid will.
Given the significant level of support for our provisional proposal to prevent the
recognition of electronic signatures under the ordinary formality rules in 2017, we did
not reconsult on this issue in the Supplementary Consultation Paper.887
8.45 We noted that paper documents are not immune from risks, of course: a will executed
on paper can be forged or can be executed by the testator as the result of undue
influence. But as they apply to paper wills, the formality requirements provide a level
of protection against forgery and other potential forms of abuse. The level of
protection for electronic wills should be equivalent. Although in the Supplementary
Consultation Paper we said that electronic wills should be “at least the same standard”
as paper wills, we did not intend to suggest that electronic wills should be a higher
standard.888 What we meant is equivalence.
8.46 In order for electronic wills to provide the same level of protection as paper wills, we
did not think that the formality requirements should simply apply to electronic wills as
they do to the paper equivalent, on a like-for-like basis. That is, we did not think that
electronic documents and signatures should be able to meet the formality
requirements for writing and signatures, without more. As we explain in Chapter 5, the
formality requirements necessary to make a valid will are considered to perform four
main functions: an evidentiary function, a cautionary function, a channelling function,
and a protective function. 889Drawing on the Law Commission’s analysis of the
functions of formalities of various transactions, and the Industry Working Group’s
analysis of deeds, 890our analysis of the functions that the formality requirements in
section 9 fulfil for paper wills led us to conclude that basic electronic versions of
documents and signatures, on their own, would not fulfil these functions to the same
degree.891
8.47 Our provisional view in the Supplementary Consultation Paper was that electronic
wills should be enabled, but that they should be subject to their own specific formality
requirements. The requirements should serve the same functions, and to the
equivalent standard, as do the requirements under section 9 of the Wills Act 1837 for
paper wills. However, we emphasised that electronic wills should not be held to a
higher standard than paper wills.892
8.48 To test this view with consultees, we asked for their views as to whether provision
should be made so that electronic wills could be recognised as valid under the law.893
8.49 To facilitate the formal validity of electronic wills, we thought that there were two
options: to enact an enabling power in a new Wills Act, which would allow provision for
electronic wills to be made in secondary legislation, possibly in the future; or to make
provision for electronic wills to be valid on the face of a new Wills Act, with or without a
regulation-making power.
8.50 We explained what we saw as the benefits of each approach.
(1) An enabling power would be facilitative and flexible, allowing electronic wills to
be introduced in a way that reflects the technology current at the time of
introduction. If consultees thought that it was too soon to introduce electronic
wills, an enabling power would give Parliament the opportunity to scrutinise the
primary question as to whether electronic wills should be made valid while also
allowing the specific formality requirements required for them to be valid to be
determined at a later date.894
(2) Making electronic wills valid on the face of a new Wills Act would be a positive
statement of intent to enable electronic wills and a positive statement about
their validity. It would ensure that Parliament would fully scrutinise both the
principle of permitting wills to be made in electronic form and the formality
requirements that electronic wills would need to meet in order to be valid.895
8.51 We invited consultees’ views about which of these two approaches they thought a
new Wills Act should take.896
8.52 We asked consultees, if a regulation-making power were enacted, for their views on
whether the power should -
(1) be neutral as to the form that electronically executed wills or fully electronic wills
should take;
(2) ensure that the requirements imposed for electronic wills are able to fulfil the
functions served by the current formality requirements to at least the equivalent
degree as they do for paper wills executed with a handwritten signature and in
person;
(3) require the Secretary of State to obtain the advice of a committee on electronic
wills and/or to consult;
(4) require the draft of the secondary legislation to be laid before and approved by
resolution of each House of Parliament; and
(5) enable the Secretary of State to make provision to address issues that might
arise where electronic wills and paper-based wills co-exist (such as where a
paper will is amended by an electronic codicil or vice versa) and/or to mirror or
modify elements of the existing law in an electronic wills context (for example, in
relation to revocation by destruction).897
8.53 Conversely, if electronic wills were made valid on the face of a new Wills Act, we
asked consultees what the formality requirements for electronic wills should be.898
8.54 Just under half of consultees thought that provision should be made so that electronic
wills can be legally valid, slightly more than those who opposed provision being made
for electronic wills. 899Although a majority of consultees did not express support for
electronic wills, there is a clear increase in support from our 2017 consultation.900
8.55 Consultees seemed increasingly to think that there is demand for electronic wills,
particularly among younger generations. A few consultees remarked that the law
should move with the times,901 with electronic wills being the way to do so. For
example, Paul Saunders902 opined that -
many of those who will be looking to make wills in the future have grown up using
electronic tools for many of their communication needs and may likely purport to
make wills electronically without realising that such wills might not be valid.
Accordingly, notwithstanding the concerns expressed by practitioners, there is likely
to be a drive towards electronic wills, and we should establish a system that can
cope with that future.
Videosign (a software provider) simply described electronic wills as “an inevitability”
and said that we should focus on how technology can support their introduction.
8.56 Adobe also stressed the importance of embracing the digitalisation of services:
In the digital age, it should be feasible to execute all consumer transactions with
electronic documents and signatures. Wills should be no exception to this general
rule provided that a system for electronic wills includes safeguards against identity
fraud, duress and undue influence.
8.57 Some consultees pointed to the impact of the COVID-19 pandemic, particularly in the
developments of systems and processes to enable remote working, as driving
demand for wills to be able to be executed electronically.
8.58 Another key point raised in favour of electronic wills was their potential to lower
barriers to will-writing by making the process easier and more accessible, or to
increase the number of people with valid wills in place. For example, the joint
response of Remember a Charity and the Institute of Legacy Management
commented that digital technologies had “already made will-writing more inclusive by
lowering financial and practical barriers faced by people with protected
characteristics”, citing the availability of e-readers as making “it easier for those with
visual impairments to review the wording of their will”.
8.59 Other consultees disagreed that electronic wills would be positive for testators.
Responding together, academics Dr John Picton, Dr Ruth Lamont and Dr Ashley
Hannay, responding together, thought that electronic wills could lead to the
emergence of a “low quality, and potentially exploitative, ‘e-will’ industry” online. Vinny
Kennedy,903 responding with others, also warned that electronic wills -
could perpetuate a capitalist system of companies providing will execution services
at the expense of the vulnerable and of low earners, thereby restricting their access
to a form of testamentary disposition, and perhaps creating a hierarchy of will
writing.
8.60 Some consultees remained concerned about the ability of electronic wills to safeguard
testators against abuse. Several consultees pointed to the prevalence of online
scams, suggesting that electronic wills would be targeted. Others worried that
electronic wills would result in more wills being made when the testator lacked
testamentary capacity, perhaps assuming that electronic wills would be made more
often without the involvement of a solicitor, will writer or other human.
8.61 Some consultees were also worried that electronic wills could cause an increase in
litigation, with disputes arising over compliance with the formality requirements, and
that disputes would require expert evidence to resolve disputes about the integrity of
the technological processes used.
8.62 Other consultees did not see safeguarding concerns as a barrier to the introduction of
electronic wills. Instead, these concerns were reasons to ensure there were sufficient
protections in place. For example, the Charity Law Association Working Party saw
electronic wills as “a positive development” while emphasising the need for
“appropriate safeguards” against fraud and undue influence, particularly for the
protection of the “elderly and vulnerable”. Some consultees further thought that
electronic wills could be more protective than paper wills.
8.63 Some consultees opposed to electronic wills suggested that technology is currently
inadequate to justify reform. For example, BDB Pitmans LLP904 did not think that
technology had advanced sufficiently to ensure accurate verification of testators’ or
witnesses’ identities. Although it acknowledged the wide use of biometric security
features in banking, it did not think that the same technology could as suitably apply in
the context of will-making.
8.64 The software providers who responded to the consultation presented a different view.
They included DocuSign; a joint response sent on behalf of RO Legal Consulting
Limited, Digidentity BV, Scrive AB, ShareRing, and Ascertia (the “joint response from
software providers”); Videosign; and AssetPass. For example, the joint response from
software providers explained that electronic wills could incorporate “safeguards
against identity fraud and undue influence” that are “just as effective, if not more so”
than the current protections provided by witnesses for paper wills. Videosign also
thought that electronic storage is superior to physical storage:
Electronic storage is not only more convenient, accessible, and cost effective than
physical storage; if utilised properly, it is considerably more secure than physical
document storage and again, less prone to fraud or accidental/deliberate
destruction.
8.65 Neither the option of an enabling power nor making provision for electronic wills on the
face of a new Wills Act attracted majority support among consultees who responded.
Slightly more consultees were in favour of provision being made in the Act itself than
for an enabling power.905
8.66 Consultees in favour of making provision for electronic wills on the face of the Act
itself made a variety of arguments.
(1) Many consultees welcomed full parliamentary scrutiny of the principle of
electronic wills and their requirements. Some consultees further expressed
concerns about decisions by the executive being ill-considered, political or
serving commercial interests rather than the public.
(2) Similarly, some consultees argued that the matter of electronic wills, or the
decision to permit them, was too important to be left to secondary legislation.
(3) Some consultees thought that primary legislation was the quickest route to
making electronic wills valid.
(4) Consultees thought that placing the requirements for electronic wills in primary
legislation would promote confidence in electronic wills. Some also thought it
would promote certainty in the requirements and make them more easily
accessible, including to testators making wills without professional advice.
(5) Some consultees also suggested that placing the formality requirements in
primary rather than secondary legislation would result in those requirements
being better drafted.
Many consultees in favour of the legislation itself making electronic wills valid also
supported a regulation-making power under which the requirements for electronic wills
could be more precisely defined.
8.67 Consultees in favour of permitting electronic wills by way of regulations that would be
made under an enabling power made three main arguments.
(1) They suggested that an enabling power would allow time for the technology or
legal framework to be developed. Some consultees making this point thought
that the time is not yet right to introduce electronic wills. For example, the Bar
Council said that section 9 of the Wills Act 1837 should be amended to clarify
that electronic wills are not valid under it; at the same time, it would be sensible
to include an enabling power. But in its view, “it is premature to pass legislation
which provides the statutory framework for electronic wills”.
(2) Some consultees thought that placing the requirements for electronic wills in
secondary legislation would allow the requirements to be easily amended in
response to developments in the future. Here, consultees referred to the need
for flexibility to address IT developments as well as any arising problems or
social changes.
(3) Some thought that permitting electronic wills by way of an enabling power
would prevent delay to the introduction of other reforms to wills law, specifically
delay to the completion of our project or the introduction and implementation of
a new Wills Act. In some cases, consultees in favour of electronic wills made
this argument: for example, Videosign described an enabling power as “a more
achievable near-term goal”, which “could be a precursor to a more
comprehensive approach at a later date”. In other cases, consultees thought
the technology had not yet been identified with sufficient precision to allow
electronic wills to be introduced without further scrutiny and processes.
8.68 In response to whether an enabling power should be neutral as to the form that
electronic wills could take, more consultees were in favour than against this idea, but
this was still fewer than half of those who responded.906
8.69 The most common reason in favour of a neutral enabling power was adaptability to
technological and other developments. For example, DocuSign said that neutrality
would ensure that the legislation is fit for purpose and allows for technological
advancement, “while ensuring the proposed regulation's core principles are upheld”.
Vinny Kennedy, responding with others, also thought that neutrality would allow for the
development of the common law, in terms of the interpretation of the requirements.
Two consultees suggested that neutrality would prevent commercial influence in the
development of the law.
8.70 Some consultees’ disagreement with neutrality appeared to be premised on a
conflation of neutrality with imprecision as to the requirements. Others disagreed with
the basic premise that the specific requirements applying to electronic wills, including
any specific technological requirements, would be dealt with by secondary rather than
primary legislation. For example, Adobe argued in favour of the enabling power
prescribing the use of qualified electronic signatures (“QES”).
8.71 A substantial majority of consultees agreed that the requirements for electronic wills in
an enabling power should ensure that they fulfil the functions of the current formality
requirements to at least the equivalent degree of paper wills executed with a
handwritten signature and in person.907
8.72 Consultees made general comments in support of this requirement. Several
consultees suggested that the requirements would need to be equivalent because
electronic wills would co-exist with paper wills; for example, Vinny Kennedy,
responding with others, argued for “equality/equity”. Some consultees suggested that
electronic wills should have to meet higher standards.
8.73 Although some consultees expressed themselves as disagreeing with this question or
expressing other views, they did not make arguments that were in substance opposed
to a requirement for functional equivalence. Rather, what varied was consultees’
understanding of the question, with some appearing to understand it to mean whether
the same requirements (rather than functionally equivalent ones) should apply to
electronic wills as they do to paper wills.
8.74 Some consultees also offered thoughts about the requirements necessary for
electronic wills to fulfil the same functions as the requirements for paper wills (a point
we consider below).
8.75 A substantial majority of consultees who responded agreed that in order to exercise
the enabling power, a committee and/or consultation should be required.908
8.76 Arguments in favour of a requirement for the Secretary of State to obtain the advice of
a committee often focused on the technical nature of the issue, and so the need for
technical or specialist advice. Some consultees suggested that such a committee’s
involvement would ensure that all the implications of electronic wills were fully
considered.
8.77 Arguments in favour of a requirement to consult emphasised that the decision is
important and would affect many people. Some consultees thought that consultation
would help to identify all issues, and one consultee 909thought that consultation might
help to address concerns about commercial interests having a disproportionate impact
on discussions about the feasibility of an electronic wills regime.
8.78 The consultees arguing against a requirement for advice from a committee or a
consultation generally thought that such processes would cause unjustified delay.
8.79 The majority of consultees were in favour of the affirmative procedure being used for
any statutory instrument made under the enabling power. 910Consultees agreed
because of the significance of the decision and their belief that full scrutiny and debate
in Parliament should be required.
8.80 The key reason for disagreement was again delay, with some suggesting that the
insight gained from the process would not be worthwhile.
8.81 A substantial majority of consultees agreed that the Secretary of State should be
enabled to make provision to address arising issues from the co-existence of paper
and electronic wills, and to mirror or modify aspects of the existing law in the
electronic wills context.911
8.82 Arguments in agreement included that such provision would be necessary and would
facilitate flexibility or adaptation in the light of experience with electronic wills.
8.83 Consultees opposed argued that the interaction between paper and electronic wills
and the application of the existing law to the electronic wills context should be
determined before electronic wills are introduced. Some consultees thought that these
provisions should be on the face of the Act itself.
8.84 Other consultees thought that these issues should be left to the courts to determine as
part of the development of the common law.
8.85 Some consultees responding to this question offered thoughts on the issues that
would need to be addressed: they included whether paper and electronic wills should
be able to alter or revoke each other, how electronic wills should be able to be altered,
and whether and how the doctrine of revocation by destruction should apply to
electronic wills.
8.86 In response to our question about what the formality requirements for electronic wills
should be, if they are made valid on the face of the Act,912 consultees offered a variety
of views.
8.87 A few consultees, including STEP, thought that electronic wills should be required to
be in a text format. Some of these consultees clarified that recordings should not be
permitted, in part due to the risk of deepfakes. For example, Paul Saunders913 warned
that:
whilst an audio file or a video file could be transcribed, the quality may be such that
parts are distorted or otherwise unclear which might risk the intended disposition
being uncertain and, thereby, compromising the will as a whole. It may also be open
to forgery, mindful that there have been many examples reported in the media in
recent years of video and audio files being created from selective editing (and
Photoshopping) to give a wholly different understanding of what the “victim” might
have said.
8.88 Two consultees suggested that a standard form could be prescribed for electronic
wills, with one pointing to the forms required by HM Land Registry.
8.89 Many consultees agreed that signatures should be required for electronic wills.
8.90 Some consultees stressed that the protection and evidentiary value of electronic
signatures must be equivalent to that of handwritten ink signatures. But one consultee,
Professor Mark Johnson, warned that the protective function of handwritten signatures
should not be overstated.
8.91 Many consultees argued that electronic execution of a will should include an identity
verification process. For example, Videosign said:
The testator should suitably verify their identity prior to signing a will - this can be
done in various ways using software which is integrated to national databases. This
identity verification might utilise their passport/driving license/national ID card/proof
of address and it might utilise biometric verification such as facial recognition or
fingerprint reading, it might also use MFA (multi factor authentication) or any
combination of these options. Once this verification is done, and the testator signs
the will, the signature could utilise a public/private key certificate (such as an eIDAS
Qualified Signature) to provide additional assurance that the will has been executed
by the testator.
Other consultees also suggested that QES should be used.
8.92 The Chancery Bar Association also warned that the process for signing must ensure
that the testator intended to authenticate the will, cautioning that this might not be the
case where a signature is protected by biometrics:
signing a document is well understood to be a legally significant act, whereas
providing biometric information is something that many people now do every time
they look at their phone (for example).
8.93 Consultees warned that, in considering the type of electronic signature required, there
must be a balance between security and ease of use. For example, the Chancery Bar
Association acknowledged that “overly elaborate authentication processes for testator
and witnesses are likely to dissuade or disable people from making an electronic will”.
8.94 Some consultees favoured the signature process being video recorded, to provide
evidence of the testator’s identity. For example, Videosign said:
the testator should be video recorded at the point of signature, in addition to any
witness who is present either in person or remotely. This video recording will provide
crucial evidence of the moment the testator signed the will which can help prove its
legitimacy.
Other consultees suggested that a recording could do more than provide evidence of
the testator’s identity, for example, providing evidence of their capacity and knowledge
and approval of the will.
8.95 Some consultees commented on the function that witnesses play. Consultees thought
that witnesses create a sense of solemnity in making a will and provide testators with
protection against fraud and undue influence. Some further suggested that the
witnesses’ role is to provide evidence, where necessary, of the testator’s capacity.
However, the Law Society stressed that, in contrast to the formalities for making a
Lasting Power of Attorney, the current formalities for paper wills do not include an
“independent safeguard ... to confirm there was no undue influence” or “to
demonstrate that the testator knew and approved the will they signed or that they
have mental capacity”.
8.96 Nearly all consultees who considered whether witnesses should be required were in
favour of retaining a witnessing requirement. But their views varied as to whether
witnessing could take place remotely.
8.97 Some consultees were in favour of requiring in-person witnessing for electronic wills.
One source of concern about remote witnessing was the recommended procedure for
remote witnessing of paper wills permitted during the COVID-19 pandemic: 914this
somewhat complicated procedure 915did not inspire confidence in some consultees.
Another concern was that remote witnessing might not ensure clarity about what the
witness is witnessing or signing, would limit the information available to witnesses
about the testator’s surroundings, or might result in the witnessing requirement not
being properly complied with.
8.98 Some consultees argued for the involvement of legal professionals in the electronic
execution process, either to witness the testator’s signature or to certify that the will
was duly executed. However, others noted that such a requirement could create a
two-tier system, given that professionals are not required to participate in the
execution of a paper will.
8.99 Other consultees were in favour of remote witnessing being permitted. In particular,
Adobe and the joint response from software providers both argued that remote
witnessing must be permitted in order for electronic wills to be viable. Adobe explained
how it could work:
Leading e-signing platforms including Adobe Acrobat Sign are integrating with
videoconferencing platforms such as Microsoft Teams and Zoom, to facilitate video
witnessing of documents and deeds. The video recording of the signing ceremony
may be embedded in the platform’s digital audit trail. The digital audit trail would be
admissible in evidence if the execution of the will were to be disputed before a court
(section 7, Electronic Communications Act 2000).
8.100 Videosign also argued that remote witnessing could be more protective than in-person
witnessing for electronic wills:
Electronic witnessing is also a more secure robust way for a document to be
witnessed, producing tangible evidence that a document has in fact been witnessed
appropriately, and by the nominated suitable person. Automated electronic
witnessing of the testator would provide a level of understanding about the testator,
and even about their surroundings and state of mind at the time of signing the will,
providing valuable evidence should litigation occur.
8.101 Several consultees questioned whether witnessing is still necessary: because some
electronic signatures involve verification of the testator’s identity, the requirement for
witnesses might be redundant. Further, Adobe and the joint response from software
providers simply noted it was an important point for us to consider, with the answer
depending on whether witnesses remain necessary to protect against undue influence
and forgery.
8.102 Noting the ease with which most electronic documents can be altered, some
consultees were concerned that electronic wills could be unintentionally or wrongfully
altered after execution.
8.103 Similarly, some consultees commented on the ease with which electronic documents
could be copied, creating difficulties in identifying the true or authentic version of an
electronic will.
8.104 Other consultees noted that electronic documents might not be stored indefinitely.
Electronic signature companies offer secure storage, but such storage is not usually
indefinite. As DocuSign explained, a document stored in its system “has a maximum
retention period of up to 9,999 days or 27 years”. Citing the International Organisation
for Standardisation’s (ISO) 19005 standard, DocuSign also noted that archives could
be kept by “third-party specialist digital preservation solutions, which must adhere to
rigorous industry standards”.916
8.105 Other consultees queried how electronic wills could be retrieved and read, including in
the light of software developments making old forms obsolete. Some consultees
argued that there should be a requirement for electronic wills to be securely stored, to
prevent their alteration or loss. For example, a solicitor917 said that the document
should be drafted by a qualified and insured professional and stored in their “online
wills bank”.
8.106 Some consultees favoured a central storage system for electronic wills. And other
consultees were expressly in favour of mandatory registration. They included the
Chancery Bar Association:
We are also concerned as to the risk of data format obsolescence or data loss. Not
everyone uses cloud-based data storage. Computers and other devices are usually
encrypted, and may be inaccessible after someone’s death, and this may be fatal,
particularly if original metadata is needed, as we think it should be. The obvious
solution to this problem is to require that an electronic will be uploaded in electronic
format to a central register. The use of a central register would prevent data loss and
obsolescence, and facilitate a uniformity of technological approach, but would-be
testators might be reluctant to upload such a sensitive document to a central register
and decline to make an electronic will for that reason alone. A majority of us thought
that this should be a mandatory requirement; a minority thought instead that it
should be something that was strongly encouraged.
Both Adobe and the joint response from software providers also called for a
Government-operated wills registry.
8.107 Some consultees in favour of registration thought that registration could involve an
assessment at the time of registration of the will’s formal validity. Some consultees
further suggested that a register could automatically submit wills to probate on the
testator’s death.
8.108 Professor Rosie Harding, with input from four overseas academics, 918suggested that
electronic wills should be unable to be altered like paper wills. In order to change their
will, the testator should be required to make a new will: this would ensure it was clear
that any amendments had been properly executed.
8.109 Consultees also commented on revocation of electronic wills. They said that,
particularly where electronic wills were stored on a DLT system or a register, there
would need to be a process for revocation. Others considered how revocation by
destruction could apply to electronic wills.
8.110 In addition to our thinking benefiting from responses to our consultations, it has also
benefited from the demonstrations we were given by several digital identity verification
and electronic signature providers: Videosign, Digidenity and Adobe, DocuSign,
Scrive, and Ascertia, demonstrations that were all kindly organised by Richard
Oliphant. These demonstrations illustrated how the process of electronically signing a
will, together with remote witnessing, could work from the point of view of the user. We
are grateful to Richard Oliphant and these providers for their assistance with our work,
as well as to the other stakeholders who have offered us demonstrations throughout
the project.
8.111 The majority of consultees still do not support the introduction of electronic wills.
However, the shift in opinion between 2017 and 2023 is striking, indicating growing
support for electronic wills, including among wills practitioners.
8.112 An aim of our project has been to produce a draft Bill for a new Wills Act that is future-
proof. Given the perhaps inevitability of electronic wills, as well as the growing support
for them, we think we would need a very strong reason not to make provision for
electronic wills in the draft Bill.919
8.113 We think that consultees’ concerns about electronic wills are legitimate and
reasonable. However, we do not think they are a persuasive case against reform. To
the extent that they raise safeguarding concerns, these can be addressed by
appropriate formality requirements for electronic wills. The consultation responses to
the Supplementary Consultation Paper, together with the demonstrations by software
providers, have reassured us that electronic wills can be made in a way that will
provide strong evidence that the will was executed by the testator; cause the testator
to think carefully about what they want to achieve with their will; direct the testator into
complying with standard, clearly defined requirements; and provide sufficient
protection for testators against fraud or undue influence when making their will. Our
key responsibility is to ensure that the formality requirements are appropriately
designed to ensure that these functions are met.
8.114 As we have explored at consultation events, we also think that some of the concerns
with electronic wills centre on whether the will is executed by the testator “at a
distance” from a solicitor or will writer. However, how the will comes to be drafted is
not something the formality requirements govern, and many paper wills are so-called
“distance wills”. Not to make provision for electronic wills on the basis of those
concerns would be to hold electronic wills to a higher standard than paper wills, as
well as to impose legal regulation in a part of the process of will making which is not
currently regulated.
8.115 Accordingly, our conclusion is that electronic wills should be capable of being formally
valid, so long as the formality requirements can provide sufficient safeguards - and
we think they can.
8.116 We have considered two legal avenues for making electronic wills valid: by way of an
enabling power, exercisable by the Secretary of State; or by a provision which would
make electronic wills valid on the face of a new Wills Act. Consultees outlined strong
arguments in favour of both approaches.
8.117 We think that making specific provision for the validity of electronic wills on the face of
a new Wills Act is the best way to permit electronic wills to be formally valid.
8.118 This route will ensure that the decision to permit electronic wills will be subject to full
parliamentary scrutiny, as will the specific formality requirements applying to electronic
wills. Placing the requirements for electronic wills within the express provisions of a
new Wills Act will also ensure that the ability to make a will in electronic form is as
clear and accessible as possible, including to both will writers and testators making
their wills without the benefit of professional advice. It will also place paper wills and
electronic wills on equal footing, with each being a way of complying with the formality
requirements to make a valid will recognised in primary legislation.
8.119 We therefore recommend that specific provision to make electronic wills valid should
appear in a new Wills Act itself.
8.120 In particular, we recommend that a new Wills Act should provide for electronic wills to
be formally valid, subject to complying with the requirements outlined on the face of
the Act. A new Wills Act should describe the formality requirements that electronic
wills must comply with in order to be valid but should not specify how those
requirements are to be met. In other words, it should be clear and specific as to the
criteria necessary for formal validity, but those criteria should be technology neutral.
We explain the criteria that we recommend below.
8.121 We also recommend that a new Wills Act should include a regulation-making power to
enable the Secretary of State to specify detailed requirements which an electronic will
may or must meet in order to satisfy the formality requirements set by a new Wills Act.
Although we recommend making provision for electronic wills on the face of a new
Wills Act, we continue to think that it should at least be an option for Government to
impose more detailed requirements by way of statutory instrument. Including a
regulation-making power will ensure that a new Wills Act itself can be neutral as to the
form that electronic wills must take, but will also allow technological or other standards
to be specified, if Government thinks appropriate or necessary. It will also allow those
standards to be changed, as technology and practices develop over time.
8.122 However, we do not recommend that precise requirements in regulations, including
technological requirements, must be in place in order for electronic wills to be valid. In
other words, we think the regulation-making power should be a power, with no
requirement that it is exercised before electronic wills are able to be executed. We
think that whether detailed technological requirements are necessary is a decision
which should be left to Government. Accordingly, under our recommendations,
electronic wills could be valid without or in advance of detailed regulations being made
in respect of them.
8.123 In light of the consultation responses, 920we think that electronic wills should have to
meet the same basic criteria that paper wills do, but with adaptations of those formality
requirements to reflect the differences between paper and electronic wills.
8.124 Although we have considered the requirements holistically, based on the functions the
requirements must perform in total, our discussion considers each requirement in turn.
8.125 We recommend that, like paper wills, electronic wills should be required to be “in
writing”, meaning words in a visible form.921
8.126 As we explained in the Supplementary Consultation Paper, we do not think that video
or audio recordings should be permitted to constitute a formally valid will. 922We
continue to think that video and other recordings are not appropriate in the wills
context.923
8.127 First, a will must be able to convey the testator’s testamentary intentions: this often
requires precise language. As we note in Chapter 11 below, the interpretation of wills
is a “vast” and “difficult” area of the law, governed by common law principles and
presumptions as well as statutory provisions. 924The exact words used, spaces, and
even punctuation might be critical to determining what the will means. In our view,
spoken testamentary dispositions will not ensure a testator’s intentions are expressed
with the accuracy and precision necessary to accurately determine what they wanted
to happen with their estate.
8.128 Secondly, we worry about the degree to which a video could be altered or entirely
faked, given the risk of deepfakes.925 The ability of new technology to achieve entirely
convincing, although wholly false, videos is increasing at an alarming pace.
8.129 Thirdly, we think that requiring a will to be in writing channels testators into making a
will in a common or standard form. Allowing videos or other recordings would unduly
increase the range of possible records that could be a valid will, making it difficult for
someone to establish, after a testator dies, whether they have made a valid will.
Although the media on which an electronic will is written, executed, and stored may
change over time, requiring electronic wills to be in writing will ensure that the content
of wills and the way testators express their wishes will not change.
8.130 Finally, we think that requiring writing will assist in satisfying the cautionary function.
The process of putting something in written language can focus the mind and reveal
inconsistencies and gaps in thinking. In our view, it is a more formal act than recording
a video. It therefore seems appropriate to continue to require writing for electronic
wills.
8.131 As with paper wills, we recommend that electronic wills should be required to be
signed by the testator. Equally, we think that the requirement, currently in section
9(1)(b) of the Wills Act 1837 that “it appears that the testator intended by [their]
signature to give effect to the will” should apply to electronic wills, to ensure that in
signing the will the testator intended for it to operate as their will in the same way that
a testator signing a paper will intends.
8.132 In order for electronic signatures to provide the equivalent evidentiary and protective
functions that handwritten signatures do, we think that electronic signatures should be
reliably linked to the testator at the time the testator signs.926
8.133 This is not a requirement of paper wills, and we do not recommend it should become
one. We think a link between the signature and the person signing is inherent in
handwritten signatures. Although forensic handwriting analysis is not a precise
science, evidence from examiners continues to be relied upon in determining whether
the testator signed the will or someone forged their signature. 927Such evidence is
often important given that the testator will be unable to testify as to whether or not they
signed the will.
8.134 It is true that marks, such as an “X”, are acceptable as signatures under the Wills Act
1837. However, in modern times, they are used exceptionally, and increasingly so,
given that testators and witnesses are much less likely to be illiterate than when the
Wills Act 1837 was introduced. Moreover, in practice, in order for a will containing
such a signature to be proved, further evidence that the will was duly executed will be
required.928
8.135 Once electronic wills are permitted, we anticipate that they will not be created only
exceptionally. They may become the main form of will in future. We therefore consider
that the type of electronic signature permitted should not be one which, in order to be
proved as valid, would invariably require further evidence of due execution.
8.136 But we think that further evidence of due execution would be required for some types
of electronic signature to have any certainty that the will was signed by the testator.
That is because we do not consider that everything termed an “electronic signature” is
necessarily inherently linked to the signatory. Certainly, what some people consider to
be basic electronic signatures - typed names or images of signatures - are not. More
advanced electronic signatures - where the signatory has had their identity verified -
can be linked to the signatory. However, this link is not inherent but is based on the
processes used to issue the person with the signature and the technology used in
generating (and protecting) the signature.
8.137 When electronic signatures are linked to the signatory, the link typically relies on the
verification of the signatory’s identity at the time when the signature is issued. In most
cases, at the time of execution, all that is required is that the signatory can access the
device on which the signature has been created and/or is stored. For many types of
more sophisticated electronic signatures, the security of the signature depends on the
actions of the signatory to keep it secure. We do not think that this form of security is
reliable in the wills context.
8.138 Fraud committed by strangers is uncommon in the wills context. 929Forgery in the wills
context is usually committed by someone close to the testator, such as a family
member, friend, or carer. These are the types of relationship in which someone may
have access to the other’s personal records, computer, and/or mobile phone, for many
legitimate reasons. For example, in the 2017 case of Patel v Patel, one of the
testator’s sons had access to her company papers, which she had pre-signed, onto
which he inserted the text of a will. 930A stranger would be unlikely to have had access
to her company papers, but it might be perfectly normal for her son to have such
access.
8.139 We are not sure that even QES fully or sufficiently protect against fraud or would
sufficiently enable fraud to be discovered after the fact in such a case. To take the
facts of Patel v Patel above, if someone has access to their mother’s pre-signed
company papers, they might also have access to her mobile phone where her QES is
stored and to any password necessary (or one-time password sent to her phone) to
apply her signature to a document without her knowing.
8.140 We understand that the “on-boarding” or “enrolment” process of obtaining a QES,
during which the signatory’s identity is confirmed and they are issued a signature, is
robust. It requires the person to prove their identity by way of assessment and
verification of their passport or other form of official identification. A live person or a
process involving artificial intelligence then compares the person’s live image with
their identification document.
8.141 But once the signatory is provided with an electronic signature, accessed by their
smart wallet or via the providers app, there are fewer safeguards to protect it. The
signature may be protected by a PIN, maybe together with a one-time password sent
to the signatory’s mobile phone. Or it might instead be protected by the person’s
passkey and a one-time password. For a mobile phone, a passkey is whichever form
of protection the person has chosen for unlocking their phone. Biometrics are
increasingly used by many people to unlock their phones. But there are concerns that
the protection offered by mobile phones’ biometric measurements, especially facial
recognition, is variable and not always robust.931
8.142 However, we understand that there are solutions to address these concerns. In order
to sign a will, the testator could be required to “onboard” or “enrol” afresh, having their
identity and live participation verified immediately prior to signing: in this case, the
testator would be issued with a one-time signature. Alternatively, a testator’s identity
could be linked to their signature during the execution process itself, and saved within
the document: for example, a photo or video of the signatory could be taken at the
time of signing and then embedded within the document.
8.143 We therefore think it is necessary and proportionate for a new Wills Act to require that
an electronic signature is reliably linked to the signatory, such that a link between the
two is made at the time of signing. But because we think that link could be reliably
established in a variety of ways, we do not think that we should specify how that link
must be established: in particular, we do not think we should recommend that certain
types of electronic signature must be used.
8.144 We recommend that electronic wills should be required to be witnessed, just as paper
wills must. We think that witnessing a will serves functions that even secure electronic
signatures cannot alone replicate, specifically cautionary and protective functions.
8.145 We acknowledge that witnessing might not be necessary in other contexts where
advanced forms of electronic signatures are used. But we think that the wills context is
different.
8.146 First, we do not believe that attaching an electronic signature to a document, on its
own, would necessarily alert the testator sufficiently to the serious nature of making a
will, causing them to think carefully about the dispositions they intend to make. Having
to sign932 in the presence of two witnesses creates a ceremonial aspect to making a
will, impressing on testators its significance. Even where witnessing takes place
remotely, we think it serves this function: it makes the execution of the will a joint
endeavour, which generally will need to be planned and agreed to in advance. It is a
simple way to impress on testators the importance of the act.
8.147 Secondly, we think that witnesses serve a protective function, particularly in relation to
undue influence, which we do not think can be served by even the most advanced
forms of electronic signatures. The requirement that a will’s execution is witnessed by
two witnesses who cannot benefit under the will provides important protection against
undue influence being exerted on the testator at the time of execution. If a witness
notices that the testator is being directed to sign the will by someone else, or is
uncomfortable or unhappy about signing, a witness may refuse to take part. We do not
believe that any of the current electronic execution platforms have protocols which
seek to ensure that the person signing a document is acting on their own and is not
being forced; in particular, we understand that live agents who confirm the person’s
identity for an electronic signature have not been trained to look for any signs of
coercion. Although the doctrine of testamentary undue influence is the primary way
the law relating to wills protects against undue influence, 933we nevertheless continue
to believe that the requirement of witnesses contributes to protecting testators.
Indeed, witnesses may be able to provide useful evidence of the testator’s demeanour
at the time the will is proved, if an allegation of undue influence is made and the
doctrine is invoked.
8.148 Finally, witnesses might be able to provide additional evidence, where necessary,
about the identity of the testator, and we think that witnesses should continue to fulfil
this evidentiary function. As we noted in the Supplementary Consultation Paper,
witnesses’ signatures may also be forged 934or witnesses may themselves be party to
wrongdoing;935 however, the requirement for two witnesses can make it more difficult
for someone to impersonate the testator or forge their signature, and more likely that
any impersonation or forgery can be proved after the fact.
8.149 Although we do not think that witnesses have a specific role in ensuring that the
testator knows and approves of the will or has capacity to make it, they often can
nevertheless provide helpful evidence about the circumstances in which the will was
executed and other matters that can be relevant to these issues when a will is later
challenged. This evidentiary function might be as useful in cases involving electronic
wills as it is in cases involving paper wills.
8.150 Accordingly, we recommend that for an electronic will to be formally valid, the testator
should be required to sign or acknowledge their signature in the presence of two
witnesses, who must also sign or acknowledge their signature in the testator’s
presence. As with the testator’s signature, the witnesses’ signatures should be reliably
linked to them, such that a link between the two can be identified at the time of
signing. We also think that the order of signing should be the same for electronic wills
as it is for paper wills, and that witnesses to electronic wills should also be required to
attest.936
8.151 We agree with some stakeholders that, if electronic wills are to be viable, any
witnessing requirement must allow remote witnessing. We understand that remote
witnessing, whether conducted over one or a combination of platforms, can enable the
main signatory and the witnesses to see each other sign, seeing both the others’
images over videoconference and the others’ signatures being applied to the
electronic document itself. We think this process would ensure that the same functions
are being met by remote witnessing as met by in-person witnessing.
8.152 We therefore recommend that the requirement for “presence” in respect of the
formality requirements for electronic wills should permit remote presence, over
videoconferencing technology, so that electronic wills can be witnessed either in
person or remotely.
8.153 But we do not recommend that the meaning of “presence” for paper wills should
include remote presence. Government amended the law to permit remote witnessing
of paper wills executed during the COVID-19 pandemic, but decided not to extend it
beyond January 2024. Remote witnessing of paper wills facilitated will-making when
people were isolating or shielding.937 As we did not expressly consider remote
witnessing of paper wills within this project, we do not think we have sufficient
understanding of how it worked in practice to make any recommendation on whether it
should be permitted in the future.
8.154 We recommend that, in order to be formally valid, the original or authentic electronic
will should be reliably distinguishable from any copies and reliably protected from
unintentional or unauthorised alteration or destruction.
8.155 These are not express formality requirements for paper wills. However, we again think
that they are, to a degree, inherent in paper wills.
8.156 For paper wills, what must be proved is the will - a document or series of documents
which the testator and the witnesses signed, usually in ink. A copy, such as a
photocopy of the will, is not the testator’s will. 938It is inherent in paper wills that the
original and copies are distinguishable.
8.157 This characteristic allows the doctrine of revocation by destruction to operate,
because it will be clear which document - the original will - needs to be destroyed in
order to revoke the will.
8.158 But for electronic documents, originals and their copies are not easily distinguishable.
Moreover, it is very easy to make copies of electronic documents. Copies are often
made without any knowing action on anyone’s part. 939It is also possible sometimes to
alter the metadata which purports to show the date the electronic document was
created.
8.159 We therefore think there should be an express requirement that the original electronic
will is reliably distinguishable from copies.
8.160 We do not think this will be a difficult requirement to establish. A blockchain or DLT
system could be used: once a will is placed on the ledger, it would reliably be the
authentic copy of a will. In Europe, under a draft version of the eIDAS Regulation 2,
there will be provision for the recognition of electronic archiving services: 940we think
that a document stored with such an archive service could be designated as the
authentic version of the will. We also think that version control software or storage with
a law firm could be evidence of the authentic copy of a will. However, we do not think
that storage on a person’s home computer or on their personal cloud account should
provide sufficient proof of an authentic copy.
8.161 Amendments to a paper will that are made after execution are also usually apparent to
the non-expert eye from the document itself. They may include words being scribbled
through or crossed out or additional text being added. Such alterations are valid so
long as they are executed in compliance with the requirements in section 9: typically,
the testator and witnesses will write their initials in the margins of the alterations, or
the testator will re-execute the will after the alterations are made. A will may also be
altered by making the words or effect of the will not apparent on the face of the will, if
coupled with the intent of the testator to alter the will by erasure.941
8.162 Electronic documents are readily amendable, and such amendments might not always
be easy to distinguish from the original text. But once an electronic will is executed as
a formally valid will, it should be secure from improper or unintentional alteration so
that the will remains unchanged unless the requirements for alteration are complied
with.
8.163 It again seems that this requirement would be straightforward to comply with, given
that various types of software allow documents to be made final. 942For example, a
QES has the effect that, once the signature is added, the document is encrypted and
cannot be altered. Documents can also include within them an audit of all the changes
made to the document - such as amendments to the text and the application of
signatures - with timestamps and IP addresses. Both could potentially be methods by
which a document could be said to be reliably secure from alteration.
8.164 Accordingly, we think that an electronic will should be required to be reliably protected
from alteration or destruction as a part of the formality requirements.
8.165 Although we recommend that electronic wills should be reliably protected from
improper or unintentional alteration and destruction, we have not gone a step further
to recommend that electronic wills should be required to be registered in order to be
valid.
8.166 We do not think it is necessary or proportionate to require electronic wills to be
registered to be formally valid. Nor do we think it is justifiable in light of the fact that
paper wills do not need to be registered to be valid. We take this view despite many
consultees who supported allowing electronic wills, including some software providers,
doing so on the basis of, or presuming that, such wills would be required to be
registered in a central register.943
8.167 One benefit of requiring electronic wills to be registered would be to ensure that there
is an authoritative and secure version of the will. However, as we have discussed
above, we think that there are other ways of achieving this aim, such as by using
asymmetric cryptography, blockchain or electronic archiving services. In the future,
there will doubtlessly be more. So rather than require registration, we think the more
proportionate approach is to require that there is an authoritative and secure version
of an electronic will.
8.168 Registration would also make electronic wills easier to discover and access once the
testator has died. That is also true for paper wills: wills made in secret and hidden by
testators may not be discovered or might only be discovered by a person who has an
interest in “losing” such a document. Proponents of mandatory registration often cite
concerns about discoverability and loss, accidental or otherwise, as justifications for
imposing registration as an additional formality requirement for all wills. Having a
central register of wills, with a mandatory requirement for registration, has been
favoured by some for many years.
8.169 Arguably, the practical issues of discoverability and access are more likely to arise, or
are more inherent, when wills are stored electronically. A paper will can be locked
away, but it can also be left in an accessible place. An electronic document could be
left in an easily discoverable and accessible location, but perhaps it is more likely to
be one among hundreds or thousands of electronic files, possibly password protected
(individually, or because the means of access to the files as a whole, such as a
personal cloud account that is password protected). Electronic storage also often
requires a person to continue to pay a fee, so failure to make such payments might
make an electronic will inaccessible after a person dies.
8.170 Paper wills also remain readable for many years. But software is constantly
developing, which might make accessing and opening an electronic will difficult many
years after it is made.944
8.171 Nevertheless, we do not think that it is justifiable to impose a requirement for
registration for electronic wills alone. Of course, it would be better if all testators
ensured that their wills were safely stored in a way that makes them easily
discoverable and accessible after they die. But although the failure to do so might
make proving the person’s last will difficult in practice, we do not think it should affect
the will’s formal validity if, despite being hard to find and access, it nevertheless can
be proved. 945Essentially, we do not think that the benefits of discoverability and
accessibility justify the limit on testamentary freedom that any requirement of
registration would impose.
8.172 Throughout this project, we have noted that registration, particularly central
Government registration of wills, might provide benefits if it were linked to the probate
system. However, the benefits might not be significant. Although some consultees
made a comparison with HM Land Registry, we struggle to envision a similar system
for wills registration: registration of dispositions of land attracts a guarantee, and
anyone prejudiced by an alteration of the register to rectify a mistake is entitled to
compensation for their loss. 946It seems unlikely that a similar guarantee could operate
for wills. To offer such a guarantee, the validity of every will that is registered would
need to be established. But formal validity of a will is only part of the picture, and often
the easier part to establish. Establishing validity of a will at the time of registration
would essentially move forward the date of proof of a will to the date of registration,
rather than after the person had died, on probate of the will. Given that an individual
may make many wills in their lifetime, each needing to be registered together with a
fee to cover the cost of the service, this type of registration does not seem justifiable
for wills.
8.173 That said, even when wills registration is more basic than land registration, perhaps
more accurately described as “formal storage” of a will, it still offers benefits. It can
simply make wills more discoverable and harder to lose. We therefore support
voluntary storage and registration systems. But we do not think this benefit alone
justifies introducing a requirement for mandatory registration, whether for electronic or
paper wills.
8.174 We recommend that a new Wills Act should contain a regulation-making power, by
which the Secretary of State could detail how the formality requirements for an
electronic will may or must be satisfied. This power will allow detailed requirements to
be put in place, for example, about how an electronic signature must be linked to a
signatory, or how an electronic document must be kept secure against alteration or
destruction.
8.175 Consultation responses on the topic of an enabling power947 have informed our
thinking about how this power should be framed. However, our thinking has also been
influenced by the fact that the exercise of this power would be about the detail of the
requirements for electronic wills, rather than the primary question of whether they
should be enabled.
8.176 We do not consider that it is necessary to require regulations made under a
regulation-making power to be subject to the affirmative resolution procedure in
Parliament. Although the majority of consultees were in favour of this requirement for
an enabling power, we do not think it is necessary for a regulation-making power
limited to making provision about the details: in passing a new Wills Act, Parliament
would have already positively decided the principle of allowing electronic wills to be
valid. The regulation-making power would exist to support the primary legislation, by
allowing specific, and perhaps technical, requirements to be outlined. In our view, the
negative procedure would provide a sufficient level of scrutiny of these more technical
decisions.
8.177 We do consider that the Secretary of State should be required to consult appropriate
people before making regulations about the way the formality requirements for
electronic wills may or must be established. We think that a broad consultation
requirement will enable any decision to create specific regulations to benefit from the
views of technical experts, providers, consumer advocates and representatives and
the general public, that is, everyone who would be affected by the regulation. We
decided that consultation would ensure participation of a broader range of voices than
the involvement of a committee. A requirement for consultation might address
concerns, such as those expressed by Dr Brian Sloan, about commercial interests
having a disproportionate voice in such decisions.
8.178 We do not consider that a regulation-making power should include the power for
primary legislation to be amended, that is, we do not recommend that the regulation-
making power should include a Henry VIII power. We consulted on this possibility in
relation to an enabling power: if provision for electronic wills were to be made through
regulations,948 a power to amend the primary legislation might be necessary in order to
address the interaction between paper and electronic wills or to define the
requirement of “destruction” of electronic wills necessary for revocation. However, as
part of recommending that electronic wills should be valid on the face of the Act, we
have considered whether further, consequential changes are necessary on the face of
the Act. We have concluded that no further provision is necessary, as we explain at
paragraph 8.205 and following below. Accordingly, a Henry VIII power is not
necessary. Nor do we think it is appropriate: if aspects of the law governing wills other
than the formality requirements were to apply differently to electronic wills than paper
wills, we think that would be a significant issue, so one that should be subject to full
parliamentary scrutiny rather than being a decision that could be taken by a Minister
or the executive alone.
8.179 We consulted on whether the new Wills Act should make clear that electronic wills
should not be accepted as valid under the formality requirements applying to paper
wills. That is, the successor of section 9 in a new Wills Act should apply exclusively to
paper wills.
8.180 We see this as a necessary corollary of making express provision for electronic wills.
There is no point in outlining specific requirements for electronic wills if they can be
valid under the provisions applying to paper wills. As we explained above, 949we think
excluding the possibility that electronic wills could, by interpretation of the formalities
applying to paper wills, be valid is necessary to ensure that the most basic types of
electronic signatures and documents cannot be used to create a valid will. We agree
with the Bar Council that the possibility that electronic wills could be permitted under
the current section 9 of the Wills Act 1837 “happened by accident, and is not either an
intended or appropriate outcome”.
8.181 Accordingly, under our recommendations there will be separate formality requirements
for electronic wills and paper wills. Our recommendations mean that there is no
possibility that an electronic will could be accepted as formally valid if it only complied
with the requirements for a paper will, rather than the additional requirements of
reliability that will apply to electronic wills.
8.182 In the current law, the requirements to alter, revoke and revive a will flow from, and
rely on, the requirements to make a valid will. 950In our project, we do not recommend
changes to how a testator can alter, revoke,951 or revive their will. Accordingly, the
requirements for each will continue to rely on the requirements to make a will.
8.183 We do not see why this approach should change with the introduction of electronic
wills. That is, having recommended the requirements for a person to make a formally
valid will in electronic form, those same requirements should apply for a person to
alter, revoke or revive a will in electronic form. We do not think it is desirable for the
methods of alteration, revocation or revival to further differ depending on the will being
paper or electronic. We think any differences would cause confusion over which
methods of alteration, revocation or revival are valid, resulting in testators trying but
failing to validly alter, revoke or revive their wills. We also think it would undermine
testamentary freedom to reduce the number of methods by which a person can make
changes to their testamentary dispositions.
8.184 We also do not think it is necessary for there to be different rules about alteration,
revocation and revival between paper and electronic documents. There is clear
guidance on how the rules work in relation to paper wills as a result of the abundance
of case law on how the requirements can be met for paper documents. Although the
specific mechanics about how people can and do interact with electronic documents is
not reflected in this case law, we think the case law can nevertheless be applied in a
commonsense way to electronic wills. We also do not think that every way in which a
person can alter or destroy an electronic will could be anticipated and reflected in
statutory form, just as we think that what amounts to alteration and destruction of text
in paper documents cannot be exhaustively defined in statute.
8.185 Under section 21 of the Wills Act 1837, a testator can alter their will by making
changes to the face of the will, by changing the text (such as by crossing out text and
replacing it), by making additions to the text (where something was left blank), or by
obliterating or erasing the text (such as to make it not apparent). For alterations and
additions, the formality requirements must be met again in relation to the change. For
obliterations and erasures, the requirements for revocation by destruction (under
section 20) are essentially the same, requiring the testator to have intended in
obliterating the text to revoke that aspect of it.952
8.186 We think these rules can be applied to electronic documents. Alteration of an
electronic will might be done by using track changes to change text by, for example,
replacing one beneficiary for another. Deleting text would appear to simply be another
way of making text not apparent.
8.187 Section 20 of the Wills Act 1837 governs intentional revocation by the testator. It
allows a testator to revoke their will by three methods.
8.188 First, a testator may revoke their will in whole or in part by subsequently making
another will, which expressly or impliedly revokes the former will. The later will must
be formally and substantively valid. Accordingly, the later made will must comply with
the formality requirements. This is a common way that testators revoke their wills. We
think it will apply to electronic wills in the same way as to paper wills.
8.189 Secondly, a testator may revoke their will by making a written declaration of their
intention to revoke it, without making a new will. As with revocation by a later will, the
testator’s written intention must comply with the formality and other requirements to
make a valid will. 953This requirement will also again apply to electronic documents
that revoke a will as it does to paper documents that revoke a will.
8.190 Finally, a testator can revoke their will by “burning, tearing, or otherwise destroying the
same by the testator, or by some person in his presence and by his direction, with the
intention of revoking the same”. Whether revocation by destruction should or can
apply to electronic wills is something we have actively considered.954
8.191 There are two separate requirements for revocation by destruction:
(1) an act of destruction by the testator or someone directed by the testator and in
their presence; and
(2) an intention by the testator to revoke the will.
8.192 There are many cases considering what is required for an effective act of destruction.
The thread in these cases is that what must be destroyed is the will itself or a part of it
which is essential to its validity (such as the testator’s signature).955
8.193 There is also case law concerning how the testator’s intention to revoke can be
evidenced. Proving intent is often difficult. So two presumptions are key to the
operation of the doctrine. First, the intention to revoke will be presumed where the will
is found in the testator’s custody at their death and it is sufficiently damaged.956
Second, intention to revoke will be presumed where the will was in the testator’s
custody but is missing at the time of their death.957
8.194 We think that those making their wills in electronic form should be able to revoke their
wills by destruction. We think there is something intuitive about revocation by
destruction. Even if it were not permitted for electronic wills, we think some testators
would nevertheless attempt to revoke their will in this way.
8.195 Our recommendations in this chapter are also crafted to ensure that revocation of an
electronic will by destruction can operate in practice. For a will to be destroyed, what
the will consists of must be clear. We recommend that, in order to be valid as an
electronic will, the original or authentic will must be reliably identifiable from copies of
the will and protected against unauthorised alteration or destruction. An important aim
of this aspect of our recommendations is to ensure that revocation of the will by
destruction remains possible. Revocation by destruction is only possible if there is one
authoritative version of a will.
8.196 Current technology or document management processes can enable an electronic will
to be “destroyed”. For example, a document stored on a DLT system can be sent to a
“burn address”,958 from where it is impossible to retrieve. We think this, for example,
would constitute a sufficient act of destruction for the purposes of the doctrine;
coupled with the testator’s intention to revoke, this should constitute revocation by
destruction.
8.197 We do not consider that any changes are needed to the common law presumption of
due execution in its application to electronic wills. Certainly, we do not consider that
this common law presumption should be modified by statute.
8.198 In the Supplementary Consultation Paper, we queried whether any reform would be
necessary to address how the presumption of due execution would apply to electronic
wills. 959The presumption of due execution arises when a will is regular on its face and
apparently duly executed. This presumption is important, particularly where the
witnesses are unavailable or deceased. How strong the presumption is varies
depending on the circumstances at hand. The presumption is particularly strong
where there is a regular attestation clause: a statement that the named testator signed
in the presence of both of the witnesses, and that then they signed in the testator’s
presence.960
8.199 The application and strength of the presumption of due execution is a matter for the
common law. We think that this should remain the case for electronic wills. Indeed, we
do not think the presumption will operate differently. In particular, given that we
recommend that witnesses should continue to be required for electronic wills, the
principle could continue to apply in the same way where regular attestation clauses
are used, and the document otherwise appears validly executed on its face.
8.200 However, it is likely that the Non-Contentious Probate Rules 1987 will need to be
amended in terms of when additional evidence of due execution might be required in
the context of electronic wills and signatures, as well as any other updates to the
Rules necessary to accommodate electronic wills. This is a matter that we think is
best left to the Lady Chief Justice in concurrence with the Lord Chancellor, who are
responsible for the Non-Contentious Probate Rules.
8.201 We recommend in this chapter that electronic wills should be capable of being
formally valid, just as paper wills are. The logical and necessary consequence of
having two forms of formally valid wills is that they will be equally valid.
8.202 We think that this means that they should be able to alter, revive and revoke each
other.
8.203 We appreciate some consultees’ views that there should be “separate but parallel
regimes” for the two types of will, 961based on their concerns that allowing paper and
electronic wills to interact could cause confusion.
8.204 However, we agree with the Chancery Bar Association that allowing paper and
electronic wills to interact is necessary so that both are “of equal status”. We moreover
think there is greater risk of confusion in having two parallel regimes, whereby once a
person makes a paper will, they cannot, for example, revoke it by an electronic will or
add to it by an electronic codicil. Having separate regimes would in our view also
undermine testamentary freedom and fail to reflect one of the defining features of
wills: that they are subject to change and revocation for as long as the testator is alive.
8.205 As we explained at the outset of this chapter, the issue of electronic wills is a matter of
formal validity. Throughout this chapter we have sought to explain how the rules
governing formal validity will apply to electronic wills under our recommendations.
8.206 Formal validity is only one aspect of the law governing wills. As this Report illustrates,
much of wills law is focused on the substantive validity of wills and the interpretation
and rectification of the gifts made within them.
8.207 Once the law permits wills to be made in electronic form as a matter of formal validity,
the rest of wills law can be left to apply to electronic wills. We do not think any
adaptations are necessary. As with testators making paper wills, testators making
electronic wills will need to have testamentary capacity, know and approve of the
contents of their will, and be free from undue influence. The contents of electronic wills
will also be interpreted according to the same rules and presumptions as the contents
of paper wills and be able to be rectified for the same types of mistakes.
8.208 On the topic of rectification, we had queried in the Supplementary Consultation Paper
whether the introduction of electronic wills would require any legislative changes to be
made to one of the grounds on which a will can be rectified.962 We had in mind the
ability under section 20 of the Administration of Justice 1982 for the court to rectify a
will if it fails to carry out the testator’s intentions in consequence of a clerical error.
However, as we explain in Chapter 11 below, courts have interpreted “clerical error”
broadly.963 We are confident that this broad approach will ensure that any routine or
technological errors mistakenly introduced into an electronic will can be rectified as
clerical errors where necessary and appropriate.
8.209 In summary, other than making specific provision for the formal validity of electronic
wills, we do not think any other changes to the law governing wills are necessary or
indeed desirable.
8.210 We recommend that electronic wills should be capable of being formally valid on an
equal basis to paper wills.
8.211 We recommend that, in addition to complying with the ordinary requirements for
making a formally valid will, in order for electronic wills to be formally valid, it should
be required that a reliable system is used such that -
(1) the testator (or person signing on the testator’s behalf) and the witnesses are
linked to their signatures at the time of signing;
(2) the original or authentic will is identifiable from copies of it; and
(3) the original or authentic will is protected from unauthorised alteration or
destruction.
8.212 We recommend that, for electronic wills, the requirement of the presence of the
person signing on behalf of the testator and the witnesses should be capable of
being satisfied by remote presence.
8.213 We recommend that -
(1) a new Wills Act should contain a regulation-making power, exercisable by the
Secretary of State, under which regulations can be made to detail how
electronic wills may or must fulfil the formality requirements;
(2) the Secretary of State should be required to consult before exercising this
power; and
(3) this power should be subject to the negative resolution procedure.
8.214 We recommend that the rules applying to how wills can be altered, revived and
revoked should apply to electronic wills, and that in particular electronic wills should
be capable of revocation by destruction.
8.215 These recommendations are implemented in our draft Bill for a new Wills Act.
8.216 Clauses 5, 6, 7, 8 and 9 of the draft Bill outline the way that wills can be formally
made, altered, revoked and revived. These clauses do not differentiate between wills
in paper and electronic form, enacting both Recommendations 16 and 19. To reflect
that “burning” and “tearing” - terms used in section 20 of the Wills Act 1837 to
describe particular ways of destroying a will to revoke it - are not apt to apply to the
destruction of electronic documents,964 clause 8 refers to a will being revoked by
destruction without giving examples of the ways in which a document can be
destroyed.
8.217 The specific formality requirements are provided in Schedule 2 to the draft Bill.
Paragraph 1 states which requirements must be met by all wills, and which further
requirements must also be met where the will is in electronic form.
8.218 Requirements A to E, in paragraphs 2 to 6, restate the existing formality requirements
that apply to all wills. As we explain in Chapter 5, they do not amend the law (except
to require that witnesses who acknowledge their signatures must also attest) but
clarify the existing requirements.
8.219 Requirement F in paragraph 7 applies exclusively to electronic wills, detailing the
additional requirements that electronic wills must meet in order to be valid, under
Recommendation 17. Requirement F mandates that a reliable system is used which,
at the time of signing, links the signature of the person signing - whether the testator,
a person signing on behalf of the testator, or a witness - with that person. It also
requires that a reliable system is used such that the original will can be distinguished
from any copies, and that the original will is protected from unauthorised or
unintentional alteration or destruction.
8.220 Also enacting Recommendation 17, paragraph 9(2) provides that the requirement for
“presence” in the general formality requirements (specifically in Requirements B, D
and E can) may, for electronic wills, be satisfied by remote presence, meaning visual
transmission. Paragraph 9(2) also defines what “signature” means in the context of an
electronic will. By requiring that the signature meets the definition provided in the
Electronic Communications Act 2000, the signature must be incorporated into or
logically associated with the will. This will also ensure that a physical signature cannot
somehow be used to execute an electronic will.
8.221 Paragraph 8 enacts Recommendation 18 to create a regulation-making power. It
enables the Secretary of State to make regulations about how the formality
requirements may or must be met in relation to electronic documents, including by
identifying what are or are not reliable systems for the purpose of Requirement F
above. By not limiting the regulations to making provision about only Requirement F,
the power ensures that regulations could, for example, specify the type of system
needed to establish other aspects of the formality requirements, such as remote
presence. It is worth noting that under paragraph 8 regulations may be made;
however, they will not have to have been made in order for electronic wills to be
formally valid under Schedule 2.
8.222 Paragraph 8(3) requires that, before making regulations, the Secretary of State must
consult, using standard legislative language. By providing in subparagraph (5) that
any regulations are subject to annulment in either House of Parliament, paragraph 8
also subjects any regulations to what is known as the negative resolution procedure.
8.223 The draft Bill also makes amendments to other legislation that are consequential to
the introduction of electronic wills. For example, it makes statutory wills, those made
by the Court of Protection on behalf of a person who lacks the capacity to make their
own will, capable of being made in electronic form, in paragraph 20(2) of Schedule 4.
8.224 Allowing electronic wills to be formally valid will also, as a consequence, enable a
child or adult will be able to express consent for the use of their bodily tissues, and an
adult will be able to make a nomination for a person to provide consent on their behalf
after their death, in an electronic will under the Human Tissue Act 2004. 965The 2004
Act extends to Northern Ireland as well as to England and Wales. Consequently, our
draft Bill will enable electronic wills to be recognised for the purposes of the 2004 Act
in Northern Ireland, even though electronic wills are not provided for in Northern
Ireland under its own law. This is a consequential amendment, because it will remain
the case that any valid will in England and Wales can express consent or make
nominations under the 2004 Act in Northern Ireland.
9.1 As we emphasise throughout this Report, testamentary freedom is central to the law
on wills. Testamentary freedom is supported by the requirements that go to the validity
of a will, including the requirement for testamentary capacity and the formality
requirements. In this chapter, we consider two further means by which the law
protects testamentary freedom: the requirement for knowledge and approval, and the
doctrine of testamentary undue influence. Together, these two aspects of wills law
play an important role in protecting testators, particularly vulnerable testators, from
financial abuse.
9.2 The requirement for knowledge and approval operates to ensure that the will reflects
the testator’s actual intentions in executing that will. It asks whether, when they
executed the will, the testator understood the will’s contents and effects. Undue
influence operates to ensure that the testator’s intentions were formed without
unlawful pressure being placed on them. It asks whether the testator wanted to make
the will that they did: that is, whether it was freely made by the testator.
9.3 We consider these two topics together because they have often been claimed in the
same circumstances. The terms of the testator’s will might raise a suspicion that the
will did not reflect the testator’s intentions. Or the circumstances in which the testator
made their will, such as the close involvement by a main beneficiary under the will,
might raise questions as to whether the will reflected what the testator wanted, or
instead what the beneficiary wanted. In both cases, someone challenging a will might
plead either lack of knowledge and approval or undue influence, or both in the
alternative.
9.4 In this chapter, we make recommendations in relation to both testamentary undue
influence and knowledge and approval. Our recommendations seek to ensure these
doctrines properly support testamentary freedom by protecting testators from financial
abuse. However, our recommendations also reflect the important balance that the law
must strike. On the one hand, the law must provide adequate protection to vulnerable
testators by ensuring that wills that do not reflect their freely made wishes can be
effectively challenged. On the other hand, the law must not encourage speculative or
spurious claims by disappointed beneficiaries, including in cases where the testator’s
will does not match social norms or expectations.
9.5 We therefore make three recommendations in this chapter.
(1) We recommend that the new Wills Act should enable the court to infer
testamentary undue influence in respect of the will as a whole or of any
disposition in the will. The court will be able to make this evidential inference
where the court is satisfied that there are reasonable grounds to suspect undue
influence. In determining whether there are reasonable grounds to suspect
undue influence, the court will consider evidence about any relationship of
influence between the person presumed to have exerted undue influence and
the testator, that person’s conduct in relation to the making of the will, and the
circumstances in which the will was made, among any other relevant factors.
This recommendation seeks to address the difficulty under the current law of
successfully proving testamentary undue influence. By allowing the court to
infer undue influence, in some circumstances, the person best placed to speak
to their own role in the will being made will be required to adduce evidence to
displace this conclusion. Accordingly, this recommendation will help ensure that
this type of financial abuse does not go undetected and unaddressed.
(2) We also recommend that the new Wills Act should place on a statutory footing
the common law requirement of knowledge and approval. This recommendation
seeks to ensure that the requirement for knowledge and approval plays its
proper role in ensuring that the testator intended to make the will in the terms
they did, while also preventing the requirement from being used as an indirect
or roundabout way of alleging undue influence. We also recommend that the
rule in Parker v Felgate 966should be retained in respect of the requirement for
knowledge and approval.
9.6 These recommendations, and particularly our recommendation in relation to undue
influence, are developments on the ideas we proposed in the Consultation Paper.
Throughout this project, in considering the need for reform, we have compared the
doctrine of testamentary undue influence (the term we use in relation to wills) with the
lifetime or equitable doctrine of undue influence (the terms we use in relation to
lifetime gifts967 or contracts). Our ideas and recommendation have drawn on the
equitable doctrine, adapted to the testamentary context. Although we framed the
discussion in the Consultation Paper as involving a choice between a structured and
discretionary presumption - meaning an evidential presumption - our
recommendation reflects the operation of the lifetime doctrine: the court drawing an
inference of undue influence based on the evidence about the relationship and the gift
made.
9.7 The law governing undue influence that applies to wills is distinct from the law of
undue influence that applies to gifts or contracts made during a person’s lifetime.
9.8 When assessing a lifetime transaction under the equitable doctrine of undue influence,
the central question for the court is whether a transaction was brought about by the
exercise of undue influence, which is a question of fact.968 Even though undue influence
is a single doctrine, a finding of equitable undue influence can be “actual” or
“presumed”, depending upon how the question is answered.969 In either instance, the
court will find that undue influence has taken place.
9.9 In a case of actual undue influence, the party alleging undue influence is normally
required to prove four elements. Lord Justice Slade explained in the Court of Appeal
that they must show that:
(a) the other party to the transaction ... had the capacity to influence the
complainant;
(b) the influence was exercised;
(c) its exercise was undue; [and]
(d) that its exercise brought about the transaction. 970
9.10 In a case of presumed undue influence, the ability of one party to influence the other
and the fact of undue influence are both presumed. A presumption of undue influence
is raised where parties are in a relationship of influence and the 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 displace the inference that it was procured by
undue influence.971 Ultimately, the question of whether the presumption - or shift in the
evidential onus - of undue influence has been rebutted “is a question of fact to be
decided having regard to all the evidence”.972
9.11 If undue influence was exercised, the transaction is voidable, meaning it constitutes
grounds on which the influenced party can set aside the transaction. The primary
remedy is the equitable remedy of rescission, which involves restoring the parties to
their original positions.973
9.12 The doctrine of testamentary undue influence operates differently to the general
equitable doctrine.
9.13 First, where a will is challenged on the grounds of testamentary undue influence,
undue influence cannot be presumed or inferred. The burden of proof always falls on
the person challenging the will to prove the undue influence.
9.14 Secondly, the contents of the doctrines are different, in terms of the behaviour that
can amount to influence which is undue. Under the equitable doctrine, undue
influence has been established from a wide range of behaviour, such as threats,
coercion, and blackmail, but also from honest advice given where the relationship was
one of influence. 974However, testamentary undue influence is confined to behaviour
which amounts to coercion.975
9.15 The law governing testamentary undue influence was summarised by Mr Justice
Lewison (as he then was) in Re Edwards (Deceased) in the following terms:
i) In a case of a testamentary disposition of assets, unlike a lifetime disposition,
there is no presumption of undue influence;
ii) Whether undue influence has procured the execution of a will is therefore a
question of fact;
iii) 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;
iv) 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.
v) Coercion is pressure that overpowers the volition without convincing the testator's
judgment. 976It 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;
vi) 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.977
9.16 In the Consultation Paper we explained that although this summary has been cited
with approval in several cases,978 doubt has been cast on the suggestion at iii) that for
a claim of undue influence to succeed the circumstances must be “inconsistent with
any other hypothesis”. This requirement, which has its origins in Boyse v
Rossborough, 979does not appear to reflect the approach the courts currently take to
the civil standard of proof that someone alleging undue influence must meet: namely,
the balance of probabilities. 980It has been suggested that “the true test is whether
undue influence is the most likely hypothesis, having regard to the inherent
unlikelihood of someone practising undue influence on a testator”.981
9.17 The absence of a presumption or inference of undue influence under the testamentary
doctrine combined with the requirement to prove the conduct amounted to coercion
means that claims of testamentary undue influence commonly fail for a lack of
sufficient evidence.982
9.18 Another difference between equitable and testamentary undue influence is that they
have different consequences. If a will or part of a will was made as the result of undue
influence, the will or the part of the will is invalid.
9.19 In order to make a valid will, the testator must know and approve of the contents of
their will.
9.20 Courts have offered slightly different formulations of the requirement, in terms of what
it means to know and approve a will. As we discuss later in this chapter, it now
appears to be settled that the requirement for knowledge and approval means that the
court must “be satisfied that the testator did know and approve the contents of his will
- that is to say that he did understand what he was doing and its effect”.983
9.21 The requirement for knowledge and approval is closely related to the requirement for
testamentary capacity: both doctrines look to the testator’s understanding that they
are making a will and its effect.984 Although logically linked, the requirements of
testamentary capacity and knowledge and approval each ask a different question.
(1) The requirement for testamentary capacity asks if the testator has the ability to
understand that they are executing a will and the effect of doing so.
(2) The requirement for knowledge and approval asks if the testator actually knows
and understands the content of the document that they are executing as their
will.985
Knowledge and approval “requires decision, not mere assent”. 986As explained by the
Court of Appeal:
Testamentary capacity includes the ability to make choices, whereas knowledge and
approval requires no more than the ability to understand and approve choices that
have already been made.987
9.22 Knowledge and approval requires the testator to understand the broad effect of the
will. It does not require them to understand the legal terminology used in the will; the
narrow legal effect of the will, for example, the operation of complex legal
mechanisms; or to be aware of other means of achieving their goal.988
9.23 The propounder of the will must prove that the testator knew and approved of the will.
Ordinarily, a duly executed will satisfies this burden of proof. Therefore, where a will is
admitted to probate in common form, evidence of knowledge and approval is not
usually necessary.989 However, where knowledge and approval is disputed, courts
have expressed mixed views about when a presumption of knowledge and approval is
raised. 990
9.24 As we explained in the Consultation Paper, a presumption of knowledge and approval
can, at times, arise where a will has been duly executed and the testator has
capacity.991 We cited the leading Court of Appeal case of Gill v Woodall, in which Lord
Neuberger rejected the idea that a formal evidentiary presumption of knowledge and
approval will be raised, but explained:
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.992
9.25 We also explained in the Consultation Paper that where knowledge and approval is
disputed, the courts previously applied a test that comprised two distinct stages. First,
the court would ask whether its suspicions as to knowledge and approval are aroused,
for example, where a beneficiary under a will helped prepare it. Secondly, the court
would consider whether those suspicions could be addressed by the beneficiary
providing an explanation for the apparently suspicious circumstances.993
9.26 However, we explained that the courts now prefer to adopt a one-stage approach. 994In
Gill v Woodall, Lord Neuberger affirmed that the court will consider the “totality” of “all
the relevant evidence available” before it determines whether the propounder has
discharged the burden to prove knowledge and approval.995
9.27 As explained in Reeves v Drew, it is therefore “unhelpful” to approach the assessment
of knowledge and approval “by reference to shifting burdens of proof”. 996Under both
tests, the burden falls on the propounder of the will to prove knowledge and approval
and to rebut any suspicions that might arise. The ease with which these suspicions
can be displaced is fact specific. For example, in Biria v Biria, the court’s suspicions
were raised in the “extreme” and it therefore required affirmative evidence that the
testator knew and approved of the will. 997Under either the one- or two-stage test, the
same outcome should be reached.998
9.28 Although costs in probate cases are awarded at the discretion of the court,999 the
general rule - that the unsuccessful party pays the costs of the successful party -
applies.1000 However, there are exceptions to the general rule. Costs will likely be paid
out of the testator’s estate where:
(1) litigation has been caused by the conduct of the testator or the principal
beneficiaries; or
(2) the circumstances lead reasonably to an investigation of the matter.1001
9.29 In the Consultation Paper, we explained that parties who plead undue influence are
likely to be ordered to pay their opponent’s costs if their claim fails. This has long been
the case, as was observed by Lord Justice Hodson in Re Cutliffe:
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.1002
9.30 For this reason, someone contesting a will where there are suspicious circumstances
might plead a lack of knowledge and approval instead of undue influence, in the hope
that, even if they are unsuccessful, they might “be awarded costs from the estate, or
at least not to have a costs order made against them”.1003
9.31 Knowledge and approval and undue influence each have a role to play in protecting
vulnerable testators by ensuring that a will is given effect only where it represents a
genuine expression of their testamentary intention. Knowledge and approval is
concerned with a matter of substance: that is, whether the will reflects the testator’s
actual intentions. Undue influence is concerned with a matter of process: whether
those intentions have been freely formed by the testator. However, as we explained in
the Consultation Paper, the exact relationship between the two doctrines can be
unclear in practice.1004
9.32 In the Consultation Paper, we outlined two key concerns raised by stakeholders. First,
if it is too difficult to challenge a will on the grounds of testamentary undue influence,
the law might not be protecting vulnerable testators from financial abuse.1005 Secondly,
if wills are challenged on the basis of lack of knowledge and approval when the
circumstances suggest that a claim of undue influence would better reflect the alleged
harm, each doctrine is not fulfilling its proper purpose.1006
9.33 As we explained, financial abuse can occur within families, often by someone who has
no awareness that they are committing any wrongdoing. 1007Financial abuse can be
particularly likely to take place where testators are isolated: for example, as a result of
age, illness, or disability.1008
9.34 However, our initial view in the Consultation Paper was that the law disincentivises
people from challenging a will based on undue influence, even where that is their real
concern: that the testator understood the content of their will but was coerced into
making the will in those terms. We suggested that the burden of proof and the costs
rules in a claim of undue influence as compared to a claim of want of knowledge and
approval incentivise a plea of lack of knowledge and approval.1009 Litigants may also be
reluctant to allege undue influence on the part of their own family members.1010
9.35 We explained our view in the Consultation Paper that this situation suggested
underlying problems with the law. If the doctrine of knowledge and approval is used to
address circumstances of undue influence, then knowledge and approval is being
asked to perform a task that it is neither designed nor best placed to achieve.
Moreover, reliance on knowledge and approval suggests the doctrine of testamentary
undue influence is not operating as a sufficient protective measure.1011
9.36 Accordingly, we considered that the doctrine of testamentary undue influence and the
requirement for knowledge and approval both required reform.
9.37 In the Consultation Paper, we suggested that reform of the doctrine of testamentary
undue influence could take one of two approaches:
(1) the equitable doctrine of undue influence could be applied in the testamentary
context, so that the presumptions that operate under the equitable doctrine
could be invoked; or
(2) a specific statutory doctrine of testamentary undue influence could be created.1012
9.38 We first considered whether the equitable doctrine could be applied to the
testamentary context, such that testamentary undue influence could be presumed in
the same circumstances in which undue influence can be presumed for lifetime
transactions. However, we thought that adopting the equitable doctrine of undue
influence in the testamentary context was neither workable nor appropriate.1013
9.39 First, we explained that the relationships of influence that raise a presumption under
the equitable doctrine do not necessarily capture those relationships which could raise
suspicions in the testamentary context. For example, a parent may be a natural
beneficiary of their child, where the child pre-deceased their parent, whereas a lifetime
gift made by a child to a parent1014 or guardian can raise a presumption.1015
9.40 Secondly, we thought that an evidential presumption arising where a transaction calls
for explanation, as it does under the equitable doctrine, could inappropriately increase
challenges to wills that do not correspond to social norms or expectations, for
example, where a will favours one child over another.1016
9.41 Thirdly, we explained that the evidential presumption under the equitable doctrine is
often rebutted through evidence that the person who was purportedly unduly
influenced received legal or other independent advice. 1017However, in the testamentary
context, a beneficiary who is unaware of the existence or contents of a person’s will
may be unable to encourage the testator to seek advice in making their will. We also
thought that an approach that would often require the testator to receive legal advice
could confer an advantage on professionally made wills, in effect introducing a barrier
to will-making by discouraging home-made wills.1018
9.42 Finally, we also wondered whether it might be more difficult for a beneficiary to rebut a
presumption where the person who they are alleged to have unduly influenced is dead
so cannot provide evidence to the court.1019
9.43 These factors led to our provisional conclusion that the general equitable doctrine of
undue influence that applies to lifetime transactions should not be applied in the
testamentary context. However, we tested that conclusion with consultees.1020
9.44 Given that we did not think it was appropriate to apply the equitable doctrine to wills,
we provisionally proposed in the Consultation Paper that a unique statutory doctrine of
undue influence should be developed for the testamentary context. We suggested that
this statutory doctrine could take one of two forms:
(1) a structured approach; or
(2) a discretionary approach.
9.45 Either approach would supplement rather than replace the current common law
doctrine of testamentary undue influence, which requires proof of actual undue
influence. The law governing testamentary undue influence, as set out in Re Edwards
(Deceased),1021 would continue to determine when the court could find that undue
influence is proved on the evidence. However, either the structured or discretionary
approach would enable a presumption of undue influence to be raised in certain
circumstances, allowing undue influence to be presumed where it could not be directly
proven. Where a presumption was raised, the behaviour in question would be
presumed to amount to undue influence unless there was sufficient evidence to rebut
this presumption.1022
9.46 The equitable doctrine of undue influence that applies in the lifetime context is an
example of a structured approach: to raise an evidential presumption, the court must
first be satisfied that each limb or requirement has been established. As we explained
in the Consultation Paper, if a structured approach were adopted to apply to
testamentary undue influence, it would need to be adapted to suit the testamentary
context.
9.47 Under the structured approach, we thought that an evidential presumption of undue
influence should be raised in the testamentary context where two prerequisites were
shown:
(1) where there was a relationship of influence, with an irrebuttable presumption
that certain relationships were relationships of influence; and
(2) where the disposition calls for explanation.
9.48 For the first prerequisite, we suggested that the relationships which were presumed to
be relationships of influence would need to differ from those under the general
equitable doctrine, in order to take into account the testamentary context. We
considered that an irrebuttable presumption of a relationship of influence should be
raised if the testator made gifts in their will to:
(1) a trustee;
(2) a medical adviser;
(3) a person who prepared their will for remuneration; and
(4) a professional carer (but not someone providing informal care, such as a family
member).1023
9.49 We also considered whether, as under the equitable doctrine, the court should
irrebuttably presume a relationship of influence where a testamentary gift was made
by a follower to their spiritual advisor. But, as we thought the issue was finely
balanced, we asked consultees for their views.1024
9.50 In all other types of relationships, where influence would not be presumed, the
existence of a relationship of influence would need to be proven.
9.51 For the second prerequisite - whether the disposition calls for an explanation - we
suggested that 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.1025
9.52 We stressed that the first factor - the conduct of the beneficiary - should not be
interpreted too widely in assessing whether the disposition calls for an explanation.
For example, there may not be anything inherently suspicious in a beneficiary
assisting an elderly family member to make their will in terms of providing them with
practical support, like taking the testator to an appointment with their solicitor.1026
9.53 We intended that the second factor - the circumstances in which the will was made -
would include circumstances where the beneficiary was not involved in the will-making
process, or where their involvement did not call for an explanation, but the
circumstances in which the will was made nevertheless cast a suspicion of undue
influence.1027
9.54 Where a relationship of influence and the disposition calling for an explanation were
proven, the evidentiary presumption would arise. We explained that, at this point, it
would be necessary for the beneficiary to rebut the presumption. In considering
whether the presumption was rebutted, we thought the court would need to look at a
range of factors, including any evidence of the testator’s motivations in making the will
and the extent to which the testator remained in control of managing their own affairs.
We did not think that the testator having obtained legal or independent advice should
on its own generally be sufficient to rebut the presumption. We explained that
ultimately, the question for the court would be whether an explanation had been given
so that the court was satisfied, on the balance of probabilities, that the testator had
acted freely.1028
9.55 In the Consultation Paper we also considered an alternative to the structured
approach to a presumption of testamentary undue influence: namely, a discretionary
approach.
9.56 We explained that, under the discretionary approach, the court would have the power
to presume undue influence by taking into account all of the circumstances of the
case, including whether there was a relationship of influence and a transaction calling
for an explanation. Unlike under the structured approach, these criteria would operate
as circumstances for the court to consider rather than mandatory prerequisites.
Moreover, under the discretionary approach, specific relationships would not be
presumed to be relationships of influence.1029
9.57 We explained that this approach would require careful consideration about how the
court’s power should be framed. But we suggested that the power 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 gift is such
as to call for explanation.1030
9.58 If the court applied the presumption of testamentary undue influence, it would then be
for the propounder of the will to rebut that presumption on the balance of probabilities.
9.59 In the Consultation Paper, we preferred the option of creating a tailored approach to
apply in the context of testamentary undue influence. We therefore provisionally
proposed that the general doctrine of undue influence should not be applied in the
testamentary context. 1031We provisionally proposed that a statutory doctrine of undue
influence should be created instead.1032
9.60 We also asked whether consultees thought that a statutory doctrine should take the
form of the structured or discretionary approach. In considering the structured
approach, we asked consultees whether they thought that a presumption of a
relationship of influence should be raised in respect of testamentary gifts made by the
testator to their spiritual advisor.1033
9.61 A substantial majority of consultees agreed with our provisional proposal that the
general equitable doctrine of undue influence, which applies in the lifetime context,
should not be applied in the testamentary context.1034
9.62 Of those who agreed, some consultees thought that the equitable doctrine would be
unsuitable for wills. For example, the Chancery Bar Association explained that it is
common for testamentary dispositions to favour persons with whom the testator has a
relationship of trust and confidence. Similarly, Dr Catrin Fflur Huws1035 said that “the
very people who are likely to unduly influence a testator are the very people who may
well be beneficiaries under a will”.
9.63 Five consultees thought that the equitable doctrine, if applied in the testamentary
context, would encourage speculative claims from disappointed would-be
beneficiaries.
9.64 One consultee agreed that the equitable doctrine should not be applied in the
testamentary context, although this view was subject to the introduction of a doctrine
of testamentary undue influence.1036
9.65 Lord Walker of Gestingthorpe1037 agreed with our proposal but stressed that the
differences between the equitable doctrine and a testamentary doctrine of undue
influence should be “no greater than necessary”. A solicitor1038 thought that - if we
decide not to create a statutory doctrine of testamentary undue influence - the
equitable doctrine should be applied in the testamentary context rather than “leaving
the law in its current state”.
9.66 The Bar Council, which favoured applying the equitable doctrine, thought that raising a
presumption under the equitable doctrine where the gift requires explanation was too
broad in the testamentary context. It suggested a softer modification: a presumption
should be raised only where the gift is unexpected or surprising in its testamentary
context.
9.67 The Charity Law Association Working Party suggested that the law for lifetime and
testamentary gifts should be consolidated as far as possible to ensure simplicity. In its
view, the presumptions under the equitable doctrine could enable charities to
challenge testamentary undue influence more easily and better protect vulnerable
testators from abuse.
9.68 Conversely, Richard Wallington thought that the existing law was “reasonably well
understood” and any problems in practice derived from issues of “fact and
evidence”.1039
9.69 STEP and the Law Society disagreed that professional advice should not be a
material consideration in the testamentary context. They thought that, under a
statutory doctrine, professional advice should be considered, particularly in cases of
high-value estates or complex circumstances.
9.70 A substantial majority of consultees agreed with our provisional proposal to create a
statutory doctrine of testamentary undue influence.1040
9.71 STEP and the Law Society agreed with our view that it is too difficult to prove undue
influence under the current law. The high threshold of proving undue influence was
also noted by other consultees, including the Law Society of Northern Ireland. In
addition, Dr Juliet Brook 1041thought that the introduction of a presumption of undue
influence in certain circumstances is necessary given that:
there are clearly a number of wills that are suspicious and where undue influence is
extremely hard to prove in the absence of the testator themselves.
9.72 Some consultees argued that our provisional proposal would help to clarify the law of
testamentary undue influence.
9.73 In contrast, the Bar Council disagreed with our provisional proposal and thought that a
new statutory doctrine of testamentary undue influence would create a mismatch
between the law for lifetime gifts and testamentary gifts. The Bar Council was
nevertheless in favour of reform, suggesting that a statutory form of testamentary
undue influence should be created if the equitable doctrine is not adopted.
9.74 Other consultees contended that the case law on testamentary undue influence is
already well understood, and that the doctrine should remain in common law so that it
can develop over time.
9.75 In response to our open question, views were evenly split between consultees in
favour of the adoption of a structured doctrine of testamentary influence and
consultees in favour of a discretionary doctrine.1042
9.76 STEP, the Law Society and the Society of Will Writers and Estate Planning
Practitioners all preferred a discretionary approach. Consultees in favour of a
discretionary approach suggested that it would -
(1) ensure that the circumstances of each case could be fully taken into account
before a presumption would be raised;
(2) prevent hardship that might otherwise arise through a strict application of a
structured approach; and
(3) be sufficiently flexible to cover the fact-specific nature of testamentary undue
influence.
9.77 A consultee responding anonymously thought that it would be difficult to define
“relationships of influence” under the structured approach, and moreover reported
instances of undue influence within relationships that we did not include in the list.
9.78 In contrast, the Chancery Bar Association thought that the discretionary approach
lacked predictability for legal advisors and would be difficult for judges to apply if there
was insufficient guidance as to when a presumption should arise.
9.79 Some consultees thought that a discretionary approach would increase litigation, legal
fees and the workload of the courts. For example, one barrister 1043warned that, under a
discretionary approach, practitioners will inevitably advise that their client has a
prospect of succeeding in a claim where there is any contact between the testator and
the person who is said to have enacted undue influence. This consultee drew
comparisons to the discretionary approach under the Inheritance (Provision for Family
and Dependants) Act 1975, legislation which he thought encouraged “cynical and
speculative claimants”.
9.80 Other consultees were concerned that judicial discretion is unpredictable and that
courts would be likely to lay down guidance that would effectively lead to a structured
approach.
9.81 Consultees in favour of a structured approach generally highlighted the certainty that
such an approach would provide.
9.82 For example, Dr Juliet Brook thought that the structured approach would ensure
greater clarity and certainty in the law of undue influence. Some consultees
considered that the clarity of a structured approach could assist potential claimants in
deciding whether to pursue a claim of undue influence, and practitioners who advise
on whether a claim should be pursued. One solicitor favoured the structured approach
as they thought the uncertainty of the discretionary approach could deter legitimate
challenges to the validity of a will.1044
9.83 However, Dr Catrin Fflur Huws was concerned that the structured approach could
cause investigations of undue influence in situations which are not necessarily
suspicious. Paul Saunders wrote that although the structured approach would be
simple - so that situations would either fall inside or outside the doctrine - this could
create “hard cases which can undermine the credibility of the doctrine”. LawSkills Ltd
added that “whilst the structured approach may be easier for practitioners to deal with
in practice it might well prevent deserving cases from being proven”. In its view, a
discretionary approach would instead ensure that unanticipated circumstances of
undue influence can be accommodated without further changes to the statute.
Similarly, the Bar Council warned that the structured approach would “risk being over-
constrained by the courts” and also thought it unclear why certain relationships would
not give rise to a presumption of influence.
9.84 There was little consensus among consultees about which relationships should raise
an irrebuttable presumption of influence. Some consultees thought it would be
unnecessary to include a presumption in relation to trustees, with the Chancery Bar
Association stating that “gifts to trustees in wills are not in our experience a major
issue”. Another consultee, Alastair Brierley, noted that trustees will often be family
members and therefore natural beneficiaries under the will. He also thought that
medical advisers should not be included because they have their own professional
conduct rules governing accepting gifts.
9.85 Consultees variously suggested that the following relationships should also raise a
presumption of influence:
(1) non-medical therapists such as psychotherapists;1045
(2) investment or financial advisers;1046
(3) those who prepare wills on an unremunerated basis;1047
(4) a person who is managing a person’s affairs, for example a donee under a
Lasting Power of Attorney;1048
(5) advocates or supporters (including those who assist a person to make a will, as
we discuss in Chapter 4);1049 and
(6) people providing household services, such as maintenance or gardening, to the
testator in exchange for remuneration (possibly except where a low value gift is
made).1050
9.86 The Chancery Bar Association did not think that specific types of relationship should
raise a presumption. Instead, it considered that the court should determine whether a
relationship of vulnerability and ascendancy or dominance, or trust and confidence,
existed in individual cases.
9.87 Considering how a disposition calling for an explanation should be defined, STEP
suggested that the court should be directed to consider, as a factor, inconsistency in a
pattern of giving. The Bar Council suggested that the size and nature of the gift should
be relevant. Dr Catrin Fflur Huws suggested that the possibility of undue influence
might be raised if the beneficiary were a relative and received a disproportionately
larger share than that to which they would be entitled to receive under the intestacy
rules.
9.88 A majority of consultees 1051were in favour of a presumption of a relationship of
influence in relation to gifts given to spiritual advisers. Some consultees noted that
spiritual advisers can have a powerful influence or can be in a privileged position of
power in relation to a vulnerable testator and that the presumption would cover
extreme cases: for example, malign influence from a cult leader.
9.89 Some consultees cautioned that the definition of spiritual adviser would need careful
consideration. They argued that it may be difficult to distinguish the application of the
term to suspicious relationships on the one hand, and legitimate relationships with
religious leaders, spiritual advisors, or friends on the other hand.
9.90 The Salvation Army thought that the inclusion of spiritual adviser would cause
significant difficulties. It explained that the organisation often receives gifts because of
the social services that it provides, but it thought it would be impossible to separate
the practical from the spiritual.
9.91 STEP commented that the inclusion of spiritual adviser as a relationship of presumed
influence would adversely impact Muslims, who might direct that their estate or a part
of it be distributed as directed by a specific Iman, in conformity with their beliefs.
9.92 The Chancery Bar Association, which did not approve of the role of presumptions
under a structured approach, also disagreed with including spiritual advisors. It
explained its view that, “it is the nature of the relationship which is significant not what
category it falls within”.
9.93 Professor Roger Kerridge and the Society of Legal Scholars suggested that a
presumption of both fraud and undue influence should be raised against any gift made
to a person “directly or indirectly involved in the will-making process”. Professor
Kerridge considered that such a presumption would cover the making of “suspicious
wills”, meaning wills in which the beneficiary has been involved so as to unduly
influence or by fraud affect the testator’s will.
9.94 In his consultation response, Professor Kerridge argued that we had underestimated
the problems of fraud in the Consultation Paper. He wrote that:
fraud should be presumed (i) because, in some cases (Wintle v Nye1052 is an
example) fraud is implicit, and (ii) because presuming fraud cuts off a possible
escape route for the person who claims that he did not unduly influence the testator,
but leaves it open as to how an unusual and suspicious gift to him came to find its
way into the will.
9.95 A few other consultees, including the Bar Council, also supported a presumption
arising when a beneficiary has been involved in preparing the will.1053
9.96 The Chancery Bar Association agreed with the need for a statutory doctrine but
instead proposed a single test for both knowledge and approval and undue influence.
It suggested that “the court must be satisfied to the civil standard that the testator
made a free choice of the testamentary dispositions to be contained in the will”.
9.97 In the Consultation Paper we noted that the standard of proof for undue influence as
strictly described in Re Edwards (Deceased) has been doubted.1054 The correct
standard of proof for undue influence has since been considered in several recent
cases.1055
9.98 Most significantly, in Rea v Rea the Court of Appeal interpreted the requirement in Re
Edwards (Deceased) to mean that the party alleging undue influence does not need to
show that the evidence supporting a finding of undue influence is inconsistent with
any alternative hypothesis. 1056Instead the appropriate test is the civil standard, the
balance of probabilities, meaning that undue influence must be the most probable
hypothesis. In most cases it will be appropriate for the court to consider that undue
influence is inherently improbable when it applies this test, although this might depend
on the particular facts of a case.1057
9.99 The High Court in Oliver v Oliver agreed with this interpretation of the law, explaining
that a finding of undue influence on the balance of probabilities means that undue
influence “is necessarily inconsistent with any other hypothesis, since that other
hypothesis cannot be ‘more probable’”.1058
9.100 Due to the nature of testamentary undue influence, it is inherently difficult to prove. As
far as we are aware, there have only been five successful claims of testamentary
undue influence in reported cases since our Consultation Paper.1059
9.101 Recent case law continues to demonstrate the difficulty of establishing testamentary
undue influence. In Copley v Winter the court commented that “where undue influence
is exercised, it is likely to be done secretively”. As a consequence, there will often be
“little direct evidence” of undue influence and the court will therefore be left to assess
whether the circumstantial evidence meets the standard of proof. 1060The facts in Biria v
Biria,1061 Jones v Jones,1062 Langley v Quinn,1063 and Oliver v Oliver1064 - all cases where
undue influence was proved - illustrate that the person claiming undue influence is
often in a difficult position in terms of being able to prove coercion. These cases
involved testators who had been physically and emotionally isolated from their family
members by the persons seeking to coerce them into making a will. The family
members from whom the testator had been isolated had the burden of proving that the
undue influence took place.
9.102 In Oliver v Oliver, the court noted that “undue influence is for the claimants to prove”
but explained that the extreme control exerted on the testator (William) by his son
(Rodney) over a long period of time was enough that William’s “will was entirely
overborne”:
William was so under Rodney's thumb, and so in fear of Rodney's leaving him, by
the time that he made the will, that he could not have done otherwise than go along
with Rodney's wishes. And William was intelligent enough to realise that he had to
do this, even in Rodney's absence. Rodney overpowered William's volition without
convincing his judgment. There was no way in which Rodney would not see the will
that William made .. and William knew that. He could not just slip out at night, or
conversely call in his neighbours, and make a new will. He was dependent on
Rodney to help him make a will.1065
9.103 Since the Consultation Paper, there have been several cases where the court has
affirmed that considerable weight will be given to evidence provided by a legal
professional. In Pattinson v Winsor 1066the court considered an attendance note written
by the solicitor during the execution of the will. The note described the testator, and
her relationship to her daughter by whom she was claimed to have been unduly
influenced. The court described the note to be “powerful contemporaneous evidence”
of the testator’s intentions made by a solicitor which supported its finding that there
had not been undue influence. Citing Hughes v Pritchard, 1067 it stressed that such
evidence must be given “considerable weight” in probate matters.1068
9.104 In the Consultation Paper we noted how the frail health or vulnerability of the elderly
testator in Schomberg v Taylor 1069was relevant to the finding of undue influence.1070
The testator’s frailty and vulnerability has continued to be considered by the court in
its assessment of undue influence, in terms of considering when influence becomes
undue. Oliver v Oliver, 1071above, is an example. Another is Biria v Biria, where the
court found that the testator lacked capacity, did not know and approve of his will, and
was unduly influenced. The court explained that:
In determining whether a testator’s will has been overborne and whether a testator is
acting on his own volition, the physical and, in this case, most materially, the mental
state, or strength, of the testator are, naturally, highly material considerations.1072
However, as in Rea v Rea, these characteristics do not always support a finding of
undue influence. 1073Of course, simply because someone was vulnerable does not
mean that their will has been overborne.
9.105 We have stressed that a will should not be left subject to challenge simply because it
does not accord with social norms or expectations.1074 In the recent case of Abdelnoor
v Barker, the court gave a similar warning against substituting judicial expectations for
the views of the testator. The testator had changed her will to amend the gifts to her
grandchildren whose parents had died, by removing the additional gift to them so that
they only received their share out of the pot for all the grandchildren. The court found
no undue influence and explained that:
Were the court to pronounce against the validity of the 2018 Will, it would have the
effect of substituting one view of what equality requires for what [the testator]
ultimately wanted. It would be wrong to do so.1075
9.106 As we explain below, we continue to believe that reform is necessary.
9.107 We consider that the best way to amend the law so that testators are better protected
is to - by statute - enable the court to infer undue influence where the facts warrant it,
drawing on the approach taken under the equitable doctrine applying to lifetime
transactions.
9.108 We remain of the view that there are meaningful differences between the situations in
which undue influence is most likely to arise in relation to lifetime gifts as opposed to
gifts in wills, such that the equitable doctrine governing lifetime gifts is inapt for the
testamentary context. 1076We therefore consider that a specific evidentiary presumption
- or inference - which draws on the equitable doctrine but is tailored to the
testamentary context should be introduced.
9.109 This statutory inference will supplement the common law doctrine of testamentary
undue influence. The conduct that amounts to undue influence in the testamentary
context will not change, meaning that to amount to undue influence, the person must
have overpowered the testator’s will without convincing their judgement or, put simply,
coerced them. Moreover, where the inference does not apply, the burden of proving
undue influence will remain on the person alleging undue influence, as it is now.
9.110 Although there was no consensus among consultees as to whether we should
recommend a structured or discretionary approach, we have concluded that the court
should be able to infer undue influence when there are reasonable grounds to suspect
it, considering evidence of certain factors, but without those factors being
prerequisites. That is, we recommend a discretionary, rather than structured,
approach.
9.111 Some consultees argued that the law governing testamentary undue influence is
already well understood and moreover that this doctrine should remain in the common
law so that it can develop.1077
9.112 However, we think that statutory intervention is required to ensure that the doctrine
provides adequate protection for testators, by ensuring that undue influence can be
established in the circumstances where it arises.
9.113 Consultees generally supported reform to the law governing testamentary undue
influence. Various consultees highlighted that undue influence is difficult to prove
under the current law. 1078The absence of an evidential presumption of undue influence
combined with the requirement to establish coercion means that claims of
testamentary undue influence commonly fail for a lack of sufficient evidence.
Moreover, as the Bar Council explained in its consultation response, where undue
influence occurs it often happens “behind closed doors”. Even where circumstances
excite suspicions - and even “to a very high degree” - without “cogent evidence ...
the perpetrator of the undue influence is beyond reproach”.
9.114 Since the publication of the Consultation Paper, the case law continues to
demonstrate that testamentary undue influence remains difficult to prove. As
explained by the court in Copley v Winter, because undue influence is likely to be
conducted in secret, only circumstantial evidence may be available.1079 In such cases,
it can be difficult to distinguish between evidence of coercion and legitimate
persuasion.
9.115 In making recommendations for reform of the law of wills generally, we have borne in
mind the need to protect vulnerable testators and to support them in realising their
testamentary intentions. We think that the current law does not effectively meet these
objectives due to difficulties in identifying, proving and, therefore, remedying undue
influence in will-making.
9.116 As we explain below, we recommend the introduction of a statutory power for the
court to infer undue influence in cases where there are reasonable grounds to do so.
We think that placing the onus on the person alleged to have exercised undue
influence over the testator in some cases will align with our objective to make changes
to the law so that it provides adequate protections for vulnerable testators.
9.117 However, we do not recommend amending the underlying common law of
testamentary undue influence. It will remain unchanged. Instead of changing the
common law doctrine of testamentary undue influence, our reform will supplement it.
9.118 Accordingly, what amounts to testamentary undue influence will remain as set out in
Re Edwards (Deceased). 1080In order to amount to undue influence, the pressure must
have “overpowered the [testator’s] volition without convincing [their] judgement”.1081 In
other words, the pressure must amount to coercion.
9.119 In the Consultation Paper, we did voice concerns about coercion, rather than lesser
conduct, being required to establish testamentary undue influence. Even with the
court able to make a factual inference where there are reasonable grounds to do so,
the seriousness of the conduct necessary for a finding of testamentary undue
influence might mean that testators are not sufficiently protected from undue pressure
which prevents them from exercising their judgement freely and independently.1082
9.120 Nevertheless, we do not recommend that the meaning of undue influence should
change. Accordingly, under our recommendation, the conduct that the court will infer
will be coercion, and, to displace the conclusion of undue influence, what will need to
be established is that the person did not coerce the testator.
9.121 We considered adopting the meaning of undue influence under the equitable doctrine
into the wills context so that it applies when the court makes an inference that the will
was made as a consequence of testamentary undue influence. The effect of this
approach would be that undue influence would mean different things - and would
refer to different types of behaviour - depending on whether it is being proven (under
the common law doctrine of testamentary undue influence) or it is being factually
presumed or inferred (under statute).
9.122 However, we concluded that would be problematic for two main reasons.
(1) We think it would be confusing for undue influence in the testamentary context
to have two different meanings, depending on how it is established.
We think it would cause difficulty for anyone alleging undue influence, as they
would have to decide which type of influence to plead. To avoid the risk that the
inference is not applied, it is likely that litigants would usually plead both types.
We also think it is difficult to justify the possibility that conduct which would
amount to undue influence under a different method of proof could not be
proven as such simply because the inference did not apply. An inference or
evidential presumption should change the way a claim is established, but it
should not alter what is being established.
(2) We also think that adopting the equitable doctrine’s meaning of undue influence
in the wills context would risk it operating too broadly. As we explain above,
where undue influence results in a lifetime transaction, the transaction is
voidable, not void. That is because what the law deems unacceptable in that
context is not the pressure leading to the transaction but the insistence on
holding the person to the transaction if they do not want to be bound. As the
text Snell’s Equity explains:
This does not mean, however, that A’s conduct prior to, or at the time of, B’s
entry into the transaction must be wrongful: the doctrine rather looks to the
conscionability of A’s insistence on the exercise of the right in the event that B
wishes to rescind the transaction.1083
However, in the wills context, the only viable consequence of a finding of undue
influence is that the will (or part of the will) is invalid. The testator will have died,
so the validity of the will cannot be based on whether they want the will to have
effect. It is arguable that, because wills are inherently revocable, the testator not
revoking the will before their death suggests they did want to be bound by it. It
therefore seems that the unconscionability of undue influence in the
testamentary context must be the undue influence itself. And it might be that the
difference in consequences for the testamentary and equitable doctrines, and
the consideration of at what point the conduct is considered to be
unconscionable, justifies the different levels of influence that each doctrine
determines to be undue.
9.123 We also think it is worth emphasising what coercion means in the context of
testamentary undue influence. Behaviour cannot be categorised into inherently
coercive and inherently not coercive. It is the behaviour’s effect on the testator that
makes it coercive or not. It therefore depends on the testator themselves, as well as
on the particular facts of the case.
9.124 As was explained in Re Edwards (Deceased), the “physical and mental strength of the
testator are relevant factors in determining how much pressure is necessary in order
to overbear the will [of the testator]”. 1084In Wingrove v Wingrove, the court explained
how these factors can give rise to different types of coercion:
The coercion may of course be of different kinds, it may be in the grossest form,
such as actual confinement or violence, or a person in the last days or hours of life
may have become so weak and feeble, [so] that a very little pressure will be
sufficient to bring about the desired result, and it may even be, that the mere talking
to him at that stage of illness and pressing something upon him may so fatigue the
brain, that the sick person may be induced, for quietness’ sake, to do anything.1085
9.125 Accordingly, what amounts to coercion will vary in each case. In Chin v Chin, the
testator’s husband had pressured her to leave property to her male descendants. The
court emphasised that the testator and her husband were each free to arrange their
affairs according to their own traditions, and to express their views and persuade the
other to do the same. 1086However, the husband’s persuasion amounted to coercion
because it sufficiently wore down the testator’s own intentions: the testator
“succumbed... for the sake of a quiet life to the extent that it overbore her wishes”.1087
On the other hand, the coercive behaviour in Oliver v Oliver was more extreme: the
testator was isolated, dominated and entirely controlled by his son to the extent that
he was arrested and barred from visiting the testator in hospital.1088 In both cases the
wills were invalid for undue influence.
9.126 The frailty, isolation and dependency of a testator will not always be sufficient factors
in establishing a claim of undue influence. In Rea v Rea the claim of undue influence
failed against a will made by a testator who was frail, disconnected from other family
members, and dependent on her daughter, Anna. The Court of Appeal explained that
the testator’s vulnerability did not necessarily imply that she was “unable to think for
herself”. 1089It accepted that the testator’s dependency on her daughter may have
placed Anna in “a better position to exert undue influence” but there was little
evidence that this influence had in fact been exerted. 1090In contrast, the High Court in
Jones v Jones found that a “combination” of factual circumstances meant that the
behaviour of the testator’s daughter “went far beyond persuasion” so that the will was
invalid for undue influence.1091These circumstances included the fact that the testator
was “vulnerable physically as well as mentally, and dependant to a substantial extent
solely upon her daughter Ceri, because of the isolation”.1092
9.127 Under our recommendations for reform, the court will continue to consider the facts of
each case, and the individual testator, to determine what behaviour amounts to
pressure that overpowers the testator’s will.
9.128 A substantial majority of consultees agreed with our provisional proposal to create a
statutory doctrine of testamentary undue influence. 1093We think that enabling the court
to infer undue influence on the evidence will rebalance the scales to ensure that
testamentary undue influence can play the protective role it should do.
9.129 As the Bar Council argued (although favouring the equitable doctrine that applies to
lifetime transactions), an evidential presumption in the testamentary context is needed
precisely because the victim of the undue influence, the testator, cannot give evidence
about what transpired.
9.130 The party who claims undue influence must prove undue influence. The fact that
undue influence often occurs behind closed doors, and always to a testator who has
since died, may in some cases present an insurmountable hurdle to establishing that
the testator was coerced, even where the circumstances are suspicious.
9.131 Strictly speaking, whether or not the inference applies, the burden of proof will be on
the person alleging undue influence, just as it is under the current law. The court must
still be satisfied that undue influence is the most likely explanation for the will, on the
balance of probabilities. However, under our recommendation, the court will be able to
infer from the evidence that the will was made as a result of undue influence. The
person defending the claim would then have to rebut or displace this inference, on the
balance of probabilities. Whether the inference applies or not, the court will continue to
bear in mind that undue influence might be more inherently improbable than influence
that is acceptable, such as mere persuasion.
9.132 The inference will therefore allow the court to consider whether the suspicious
circumstances reasonably lead to the conclusion that the testator was coerced into
making the will in the terms they did, and so to require an explanation to establish that
the will did reflect the testator’s own intentions.
9.133 Testamentary undue influence cases are fact specific. This area of law, and any
reform to it, must be sufficiently flexible to protect testamentary freedom in individual
cases. Equally, to avoid unnecessary or speculative litigation, the law must be
sufficiently certain so that parties can be advised on the prospects of a case before a
claim is brought before the court. In short, flexibility and certainty must be balanced.
9.134 We have kept in mind this objective in considering reform to the way that testamentary
undue influence is established: that is, whether the ability to infer undue influence
should follow the establishment of set prerequisites (a structured approach) or operate
based on assessment of the circumstances in each individual case (a discretionary
approach). Consultees were evenly split as to which approach should be adopted.1094
9.135 We think a discretionary approach is better suited to the testamentary context. In
particular, we think it will provide the flexibility necessary to ensure that undue
influence can be inferred in the wide variety of factual scenarios where there are
legitimate suspicions of coercion. We also think a discretionary approach, together
with the rules governing costs, will ensure this area of law is as certain as possible,
given its inherently fact-specific nature.
9.136 A clear advantage of a structured approach would be its certainty. However, we think
that a structured approach would lack sufficient flexibility for the testamentary context;
the approach would be both under- and over-inclusive in terms of when a presumption
of undue influence is raised, meaning that it would either not be raised where it is
most needed or would be raised where it would be unhelpful or even inappropriate.
Fundamentally, a structured approach might be certain, but it would not be accurate,
and so we do not think it is the right approach to adopt.
9.137 Accordingly, we recommend below that the court should be able to infer testamentary
undue influence where there are reasonable grounds to do so, considering the
evidence of any relationship of influence between the testator and a person, that
person’s conduct and involvement in relation to the will being made, and the
circumstances in which the will was made.
9.138 We think a discretionary approach is best suited to the testamentary context, in large
part due to its flexibility.
9.139 We suggested in the Consultation Paper that, if a structured approach were adopted,
there were four relationships in which a relationship of influence should be presumed
in the wills context: a trustee, a medical adviser, a person who prepares the testator’s
will for remuneration, and professional carer. 1095We also queried whether a spiritual
advisor should also be presumed to be in a relationship of influence with the
testator. 1096Some of these relationships mirror those that are presumed to be
relationships of influence under the equitable doctrine for lifetime transfers. However,
we excluded gifts from a child to a parent or guardian, which are captured under the
equitable doctrine.
9.140 However, we think that it is difficult to prescribe relationships of influence that would
be both accurate and constructive in the wills context. Although the relationships
which we identified in the Consultation Paper could be relationships in which
testamentary undue influence arises, they are not the relationships in which it appears
that testamentary undue influence commonly does arise, as we discuss below.
9.141 Accordingly, there was no consensus among consultees about the categories of
relationships which should give rise to an irrebuttable presumption of a relationship of
influence. Some consultees raised the issue that it might prove difficult to define some
of the relationships which should give rise to the presumption, such as the relationship
between a testator and a spiritual advisor. Other consultees questioned why the
proposed categories should give rise to a presumption of influence and suggested
that various other categories should be included.
9.142 The Law Society noted its understanding that “the majority of cases of suspected
undue influence or abuse arises from familial relationships or relationships with friends
or neighbours”. This observation is borne out in the reported case law. For example,
the case law is peppered with cases of allegations, proven and unproven, that an
adult child unduly influenced their parent, allegations often made by one sibling
against another.1097 Other recent examples include undue influence between a testator
and their spouse,1098 or a testator and their brother-in-law.1099
9.143 We did not propose that such relationships should be reflected in the prescribed types
of relationships under the structured approach. That is because these relationships
are also likely to be those that result in perfectly legitimate gifts under a will. Testators
very often make significant gifts, or leave their entire estate, to their children under
their will for reasons other than the child’s influence over them. Although the child-
adult relationship is a common feature of testamentary undue influence case law,
identifying it as a relationship of presumed influence would be hugely problematic,
because it is certainly not the case that most adult children unduly influence their
parents in relation to their wills. The same is true of gifts in wills from one spouse to
another, or to any other member of the testator’s family, or to their friends. In the
language of Banks v Goodfellow, these are the people for whom the law expects the
testator to have natural affection, and to appreciate their claims on them in making
their will. 1100It would be absurd for the law to assume in the majority of cases that
these gifts were made as the result of undue influence.
9.144 Under a structured approach, relationships that fall outside the established categories
would not automatically be presumed to be relationships of influence, meaning an
inference could not apply unless the specific relationship in question was shown to be
one of influence. As a result, the party challenging the will would need to meet an
additional hurdle in proving that a relationship of influence exists.
9.145 Accordingly, although it works well in the lifetime context, we do not think that the
category of relationship is necessarily a good predictor of undue influence in the
testamentary context. Therefore, in automatically presuming that certain relationships
involve influence, the structured approach - as applied to wills - would fail to capture
most cases of undue influence.
9.146 A discretionary approach therefore seems more apt in the testamentary context.
9.147 A discretionary approach would not prescribe or define the relationships that give rise
to a presumption of influence, avoiding the difficulties with doing so. It would instead
direct the court - in all cases - to consider whether any relationship on the facts of the
case was one of influence. This factor would be relevant to the court determining that
there were reasonable grounds to infer undue influence. We think that this approach
will better reflect the breadth of relationships in which testamentary undue influence
takes place and avoid the need to make what may be inherently arbitrary distinctions.
Essentially, we think a discretionary approach would better reflect the context of
testamentary undue influence.
9.148 Although a discretionary approach offers more flexibility, it offers less certainty than a
structured approach.
9.149 Uncertainty may encourage spurious claims and may discourage valid claims. One
barrister consultee felt strongly that the discretionary approach would allow
speculative claims, lead to litigation and frustrate testamentary freedom.1101
9.150 One concern with a discretionary approach is that it might allow the presumption to
apply in too wide and uncertain a range of circumstances. One solicitor commented
that judicial discretion can lead to “very unpredictable outcomes”.1102 Other consultees
considered that the approach might require guidance to steer the court’s discretion.1103
9.151 We agree that simply giving the court discretion to raise an evidential presumption of
undue influence where it sees fit would create too much uncertainty in this area of the
law. Accordingly, we recommend that the court should be able to infer testamentary
influence only where there are reasonable grounds to suspect it. In determining
whether there are reasonable grounds, we recommend that the court be directed to
have regard to evidence of three factors or criteria, which we explain in more detail
below. We think that requiring the court to have regard to these three criteria will
ensure that the cases in which undue influence is inferred will be predictable. We
expect that certain patterns of circumstances will be identifiable as those in which it
would be reasonable for the courts to suspect undue influence. One example may be
in cases of an elderly or unwell testator who has become wholly or largely dependent
on a person for assistance with their care and wellbeing. Being isolated from others,
the testator changes their long-standing or well-known testamentary wishes to give
their entire or nearly their entire estate to the person on whom they are reliant, shortly
before they die.
9.152 We recommend that in deciding whether there is evidence which provides reasonable
grounds to suspect undue influence, the court should be required to have regard to
three factors:
(1) the conduct of the person claimed to have exerted undue influence over the
testator;
(2) whether there is a relationship of influence between that person and the
testator; and
(3) the circumstances in which the will was made.
Although the court is directed to consider these factors, it may find that there are
reasonable grounds for suspicion having regard to other circumstances in the case.
9.153 We remain of the view that the court should be directed to have regard to whether
there was a relationship of influence between the testator and the person who
allegedly influenced them. Although we do not think types of relationships can be
usefully defined as giving rise to a presumption of influence in the testamentary
context, that the person had influence over the testator on the facts of the case clearly
speaks to whether that person may have misused their influence on the testator. By
not restricting this factor to certain types of relationship, the court will be free to assess
whether the individual relationship - whether between a parent and child, elderly
resident and carer, or a person and their neighbour - was one of influence.
9.154 However, we do not recommend that the court should also be directed to have regard
to whether the gift in the will “calls for explanation” (the other prerequisite for the
lifetime presumption to apply). As we explained in the Consultation Paper, the
meaning of “calls for explanation” in relation to the equitable doctrine for the lifetime
context is inappropriate in the testamentary context. In the lifetime context, it
considers if the transaction cannot readily be accounted for by the ordinary motives of
ordinary persons in that relationship. For example, it is obviously suspicious if a
person transfers the bulk of their property and money to someone caring for them in
their lifetime. But it is not necessarily suspicious if they do so under their will.
Moreover, in the testamentary context, this meaning of “calls for explanation” could
result in gifts which depart from accepted norms and expectations being challenged,
an outcome we consider would be contrary to testamentary freedom.1104
9.155 We therefore considered in the Consultation Paper whether the court should more
specifically be directed to have regard to the factors that are most relevant in the
testamentary context: the conduct of the beneficiary in relation to the making of the
will and the circumstances in which the will was made. We continue to think this is the
right approach.
9.156 As we explained in the Consultation Paper, a common feature of undue influence
cases is the beneficiary being closely involved in making the will. 1105The beneficiary
may have: chosen the solicitor or will writer; 1106made arrangements for the testator’s
meeting with the solicitor or will writer; 1107participated in discussions between the
testator and solicitor or will writer about the terms of the will or in giving instructions for
the will;1108 or helped to keep the will a secret from other potential beneficiaries.1109
Accordingly, we recommend that the court should be directed specifically to have
regard to the beneficiary’s conduct, including their involvement in making the will.
9.157 Other aspects of the circumstances in which the testator made their will may also
indicate the possibility of undue influence, beyond the beneficiary’s involvement. For
example, where the testator executed a will that drastically departs from the terms of
an earlier will; 1110or the testator made their will following, or around the time of,
ceasing contact with family members,1111 or after a new person entered their life.1112
Accordingly, we think the court should also be directed to consider the wider
circumstances in which the will was made.
9.158 Moving away from the concept of a gift that “calls for explanation” will ensure that
courts are not tempted to replace the testator’s judgement about who is a worthy
beneficiary with their own. That said, we believe that the courts are already adept at
assessing the validity of wills without favouring “expected” beneficiaries. The test in
Re Edwards (Deceased) makes clear that the court should not consider the fairness of
the testamentary disposition, but whether in making this disposition “the testator has
acted as a free agent”.1113 The importance of not substituting the court’s view for that of
the testator’s was recently restated in Abdelnoor v Barker. The court was careful not
to impose their own view of creating “equality” between beneficiaries, when
considering whether changes to the testator’s will were inconsistent with her
expressed intentions to treat her grandchildren equally so as to support a finding of
undue influence.1114
9.159 We do not recommend that whether the testator received professional advice should
be an express factor that the court is directed to consider in applying the presumption.
However, it will be part of the consideration of the circumstances in which the will was
made. We had said, in the Consultation Paper, that the equitable doctrine may
operate to favour the validity of professionally drawn wills and therefore place a barrier
to homemade wills by suggesting that testators should necessarily seek professional
advice. 1115Commenting on this point, STEP and the Law Society stressed that, in
rebutting a presumption, professional advice should be considered material,
particularly for high-value estates or in complex circumstances. We agree. It is likely
that, as in Pattinson v Winsor 1116and Hughes v Pritchard, 1117the courts will continue to
place significant weight on professional evidence in considering whether the will has
been made as a result of undue influence.1118
9.160 Professor Roger Kerridge and the Society of Legal Scholars proposed that an
automatic presumption of undue influence should be raised where a beneficiary has
been involved in making the will. We considered this idea in the Consultation Paper.1119
We think that our recommendation to enable the court to infer undue influence where
there are reasonable grounds to suspect it addresses the concerns that can fairly
arise when a beneficiary is closely involved in making the will, but in a measured, fact-
specific way. For example, it will not direct the court to infer undue influence where the
beneficiary’s involvement does not raise a suspicion of undue influence, but instead,
for example, is simply an adult child asking their parents whether they have made a
will or encouraging them to do so, and helping them to attend an appointment with
their solicitor.
9.161 Professor Roger Kerridge and the Society of Legal Scholars also suggested that we
should recommend a statutory presumption of fraud. Whereas undue influence
assesses whether the testator has been coerced into making their will, fraud assesses
whether the testator has been deceived. 1120A specific type of fraud, known as
fraudulent calumny, is sometimes pleaded alongside a claim of undue influence. 1121A
will is set aside for fraudulent calumny where a person knowingly or recklessly makes
a false representation to the testator about the character of a potential or existing
beneficiary, so that the testator alters their testamentary dispositions.1122 We explained
in the Consultation Paper that we were not aware of any particular problems arising
with claims of fraud.1123 Consultees’ responses have not caused us to revise our view.
9.162 We are also not attracted by the Chancery Bar Association’s proposal to create a
single statutory doctrine comprising knowledge and approval and undue influence. We
see the concepts of knowledge and approval and undue influence as performing
different roles, as we have outlined above.1124 We are also not convinced that, in the
absence of enabling undue influence to be inferred, this approach would better protect
testators against undue influence. The barriers to proving undue influence will remain
in cases where there is no direct evidence of coercion, if the persons claiming undue
influence are always required to prove undue influence on the balance of probabilities.
9.163 Some consultees suggested that a code of practice could sit alongside reform to the
law about how undue influence is proved, to provide examples of undue influence to
guide the will-making process.1125 Although we do not think it is a matter for law reform,
we are supportive of legal professional and other organisations developing codes of
practice for their members, to raise awareness of testamentary undue influence and to
alert their members to circumstances in which people might be vulnerable to undue
influence and steps to take to protect testators.1126
9.164 We recommend that the court should be able to infer that a will was made as a
result of undue influence where there are reasonable grounds to suspect undue
influence, considering (among other matters) the conduct of the person claimed to
have exerted undue influence in relation to the will, whether there was a relationship
of influence between that person and the testator, and the circumstances in which
the will was made.
9.165 Recommendation 20 is enacted in clause 15 of the draft Bill for a new Wills Act.
9.166 Where testamentary undue influence is alleged in a statement of case, clause 15
empowers the court to find undue influence where there is evidence that provides
reasonable grounds for suspecting it, having regard to the conduct of the person
alleged to have exerted undue influence in relation to the making of the will, the
relationship between that person and the testator, and the circumstances in which the
will was made more widely. Although the court is required to consider those three
factors, it may consider any other factors it considers relevant. In these
circumstances, the court may only find that the will has been made as a result of
undue influence where it has not been proven, on the balance of probabilities, that the
testator was not unduly influenced, that is, where it has not been proven that the
testator acted free of coercion.
9.167 Clause 15 does not otherwise alter the common law governing testamentary undue
influence but instead relies on it. As provided in clause 15(6), testamentary undue
influence will continue to be able to be proved in the usual way. And however undue
influence is established, the consequences will continue to be that it makes the will, or
the part of the will procured by undue influence, invalid.
9.168 In this project, our consideration of knowledge and approval and testamentary undue
influence has focused on how each can better perform their separate roles in
protecting vulnerable testators in practice. For testamentary undue influence - a
question of process, namely whether the testator’s intentions have been freely formed
- our focus has been on ensuring that it can be alleged and proven where it has
occurred, so that testators can be protected from this type of financial abuse. For
knowledge and approval - a question of substance, namely whether the will reflects
the testator’s intentions - our focus has been on confining its scope to the
understanding of the testator in making their will as well as clarifying its requirements.
9.169 In the Consultation Paper we explained that knowledge and approval should not
perform the role of undue influence. The requirement for knowledge and approval
does not consider the question of process as to whether the testator freely decided
the terms of the will. Rather, knowledge and approval considers whether the testator
understood that they were making a will and the terms of the will. 1127In other words,
knowledge and approval asks, as a matter of substance, whether the will represented
the testator’s intentions.1128
9.170 However, as we explained, a claim of want of knowledge and approval is often used to
cover “suspicious circumstances” where the real question is whether the testator
freely decided the terms of the will. We considered that our provisional proposal to
create a statutory doctrine of undue influence would make it easier for testators
successfully to claim undue influence, therefore removing the incentive to plead
knowledge and approval instead. For cases that involve other suspicious
circumstances, the key issue would continue to be whether the testator knew and
approved of the terms of the will.1129
9.171 To ensure that knowledge and approval is confined to its proper function, we
considered that the requirement for knowledge and approval should be set out in
statute.
9.172 At the time of the Consultation Paper, we were aware of uncertainty regarding the
exact legal formulation of the requirement for knowledge and approval. This
uncertainty was a factor in our decision to provide a clear restatement of the legal test.
9.173 We considered the judgments in Hoff v Atherton,1130 Gill v Woodall,1131 and Ark v
Kaur1132 in terms of what it means to know and approve a will. At the time, we favoured
the formulation of the requirement in Ark v Kaur, that knowledge and approval:
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.1133
9.174 We thought that this formulation reflected the view in Perrins v Holland that
“knowledge and approval requires no more than the ability to understand and approve
choices that have already been made”.1134 We therefore favoured this formulation
because in our view it put clear water between the requirement for knowledge and
approval on one hand, and the requirement for capacity on the other.
9.175 We provisionally proposed that the requirement of knowledge and approval should be
confined to determining that the testator:
(1) knows that they are making a will;
(2) knows the terms of the will; and
(3) intends those terms to be incorporated and given effect in the will.1135
9.176 We did not propose any reform to presumptions in the law of knowledge and approval.
We did observe that presumptions appear to have less relevance more recently, due
to the holistic, one-stage approach to knowledge and approval preferred by the Court
of Appeal in Gill v Woodall.1136
9.177 In the Consultation Paper we explained that the testator must know and approve of the
will at the time it is executed. 1137However, we also explained that there exists a common
law exception to this requirement: the rule in Parker v Felgate. 1138Where the exception
applies, knowledge and approval need not be proved at the date of execution. This
exception mirrors one in relation to capacity.1139 In Perrins v Holland, the Court of Appeal
explained the rule as follows:
Where the testator loses some of his faculties between giving instructions and
executing the will ... 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.1140
9.178 Therefore, if the professional follows the testator’s instructions and, at the time of
execution, the testator understands that the professional has prepared the will in
accordance with their instructions, the requirement for knowledge and approval can be
satisfied.1141
9.179 In considering reform to the law governing capacity in the Consultation Paper, we had
provisionally proposed that the rule in Parker v Felgate should be retained. Similarly,
we provisionally proposed that the mirror rule that applies in respect of knowledge and
approval, following Perrins v Holland, 1142 should also be retained.
9.180 We thought that the policy reason for the rule in Parker v Felgate in relation to
capacity applies equally in relation to knowledge and approval: that is, the need to
give effect to the testamentary wishes of a testator where their capacity declines after
giving instructions. We thought it would be inconsistent if, where the testator loses
capacity between giving instructions and the execution of the will, the will would be
saved from invalidity for lack of capacity but would fail for want of knowledge and
approval.1143
9.181 We therefore provisionally proposed to retain the rule in Parker v Felgate as it applies
in relation to knowledge and approval.1144
9.182 A substantial majority of consultees, including STEP, the Law Society and CILEx,
agreed with our provisional proposal to place the requirement for knowledge and
approval in statute in the terms we proposed.1145 Some consultees thought that the
proposal would prevent claimants from using one plea in place of the other, or would
remove some of the overlap between undue influence and knowledge and approval,
or between knowledge and approval and claims based on lack of testamentary
capacity. Professor Rosie Harding commented that the provisional proposal “restricts
claims about knowledge and approval to cases where this, rather than de facto undue
influence, is the issue at hand”.
9.183 However, the Chancery Bar Association was concerned about the requirement for
“knowledge”. It doubted that a testator would know the terms of the will in the sense of
knowing the particular legal effect of some clauses. 1146It suggested an alternative
formulation, under which the testator instead must understand that they are making a
will and the dispositions made by the will and approve the inclusion of those
dispositions in the will.
9.184 Henry Fairbairn1147 argued that knowledge and approval should include a requirement
that the testator knows which assets they have, knows who should inherit which
assets, and knows the value of each gift.
9.185 Penningtons Manches LLP1148 thought that the proposed formulation should also
capture the requirement that a testator should “understand the consequences and
impact of the decision made”. Similarly, Dr Catrin Fflur Huws stressed the need to
assess “whether the testator is aware of the implications of a will and how it will be
given effect to”.
9.186 Dr Brian Sloan1149 agreed that our provisional proposal would reduce the current
difficulties in the law of knowledge and approval. He suggested that we should also
make clear in what circumstances knowledge and approval will be presumed.
9.187 In contrast, Professor Roger Kerridge suggested removing the requirement of
knowledge and approval completely. In his view, it adds nothing to the existing
doctrines of capacity, undue influence, and fraud.
9.188 A substantial majority of consultees were also in favour of our provisional proposal to
retain the rule in Parker v Felgate in the context of knowledge and approval.1150
9.189 STEP and the Law Society thought that the rule should be retained because it
supports testamentary freedom.
9.190 The Chancery Bar Association noted that members of its working group were not
unanimous in supporting the retention of the rule in Parker v Felgate but agreed that if
the rule is retained in the context of testamentary capacity, there should be a similar
rule for knowledge and approval.
9.191 Two consultees suggested a time limit to the application of the rule. Lord Walker of
Gestingthorpe agreed that the rule should be retained but that it should only apply
where there is a “contemporaneous note in writing of the instructions, and the will is
executed within a reasonably short period (say 30 days)”. CILEx also thought that a
long period between instructions and execution could undermine a testator’s
knowledge:
Testators with declining capacity can still have long periods of sufficient capacity, but
the nature of the illness or condition may mean that the testator may not understand
that they are signing a legal document if an extensive period of time has passed
since instructions were taken. This is particularly relevant in cases of testators
suffering from dementia.
9.192 The High Court has reflected on the relationship between undue influence and
knowledge and approval since the publication of the Consultation Paper.
9.193 For example, the will in Bond v Webster was successfully challenged on the grounds
of knowledge and approval. However, during the pre-action correspondence in that
case, the parties challenging the will “had raised questions about undue influence
and/or fraudulent calumny”. The court warned that “care must be taken not to allow
the allegation of want of knowledge and approval to be used to run a case of
dishonesty or undue influence”.1151
9.194 In Reeves v Drew, the High Court explained that there is “inherent tension” between
the two challenges of knowledge and approval and undue influence:
On the one hand, the Defendants are saying that the deceased did not know and
approve the contents of the will. On the other hand, they are saying that, if he did
know and approve the contents, that was only because of the undue influence
exercised by the Claimant on the deceased. This was a relatively simple will to
understand. It is difficult to see that the Claimant could have both fooled her father
into signing a will that he would otherwise not have signed if he knew what its
contents were and at the same time exercised such undue influence over him such
that he was persuaded to sign the will with those contents. The Defendants are
entitled to run inconsistent alternative cases but it does seem to me to be
problematic to run those alternative factual stories together.1152
9.195 In the Consultation Paper, we favoured the formulation of knowledge and approval in
Ark v Kaur.1153 We explained in the Consultation Paper that we were concerned that
Lord Justice Chadwick’s discussion of knowledge and approval in Hoff v Atherton1154
could be seen as conflating knowledge and approval with an assessment of the
testator’s capacity. 1155Lord Justice Chadwick suggested that knowledge and approval
may require evidence that “the effect of the will was explained” and that the testator
understood and appreciated “the extent of his property... and the claims on his bounty
to which he ought to give effect”. 1156We thought that this explanation of knowledge and
approval might require proof of the same things necessary to establish testamentary
capacity.1157
9.196 However, Lord Justice Chadwick also set out a formulation of the requirement for
knowledge and approval in Hoff v Atherton:
the court is to be satisfied that the testator did know and approve the contents of his
will - that is to say that he did understand what he was doing and its effect.1158
This formulation was cited with approval by the Court of Appeal in Gill v Woodall.1159
9.197 Since the Consultation Paper, the Court of Appeal’s adoption in Gill v Woodall of Lord
Justice Chadwick’s formulation in Hoff v Atherton has been widely cited as the
authoritative meaning of knowledge and approval.1160
9.198 The courts have made it clear that the testator’s understanding of both the contents of
their will and its effects is necessary to satisfy the requirement of knowledge and
approval.
9.199 For example, in Leonard v Leonard, the High Court explained that the testator must
not only know what the words of his will said, but must also understand “both ‘what he
is doing and its effect’”.1161The Court found that the testator neither understood what
was in the will, nor “what the effect of key provisions would be”. 1162For instance, the
testator did not understand that the effect of a complex provision regarding his
property in the United States was to leave his son Andrew “in an uncertain and
detrimental position”.1163
9.200 Similarly, in Ingram v Abraham the High Court determined that the will failed to reflect
the testator’s intentions. The testator had sought to give her estate to her brother to
distribute fairly between her children in accordance with her “orally and repeatedly
expressed wishes”. 1164Instead, the will left the residuary estate absolutely to the
testator’s brother. Accordingly, the defendants had:
failed to discharge the burden of proof to establish that [the testator] ... understood:
(a) what was in the 2019 Will when she signed it; and (b) (more emphatically) what
its effect would be.1165
9.201 In contrast, the court found that the testator sufficiently understood the effect of her
will in Abdelnoor v Barker. 1166As we explained at paragraph 9.105 above, the testator
changed her will in terms of the amount received by her grandchildren whose parents
had died, in a way that appeared to contradict her intention to treat all her
grandchildren equally. However, the Court held that the effect of the alterations was
explained effectively and clearly to the testator by a professional will writer, both in
person and by letter. The testator therefore understood the contents of the will and its
effect, and the will was approved.
9.202 Courts have also made clear that assessing the testator’s understanding of the effects
of their will under the doctrine of knowledge and approval is not equivalent to an
assessment of their testamentary capacity. Knowledge and approval and
testamentary capacity remain distinct, with the courts continuing to consider the
relationship between both doctrines. For example, the High Court in Wilkinson v
Hicken explained that the requirement that the testator understands the contents of
their will and its effect ensures that the testator approves of “choices that have already
been made”. In contrast, testamentary capacity ensures that the testator is able to
make these choices in the first place. 1167 The High Court in Biria v Biria similarly
distinguished between the two doctrines:
Capacity goes to the ability to make a will. Knowledge and approval goes to the
question as to whether the contents of the particular will executed, or purportedly
executed, by a testator, truly reflect the testator’s intentions as to those contents and
as to the effect of those contents.1168
9.203 We consider that the requirement for knowledge and approval should be placed on a
statutory footing, in the draft Bill for a new Wills Act. We think that placing the
requirement for knowledge and approval on a statutory footing will help to ensure that
it is confined to its proper role: assessing whether the testator understood the terms of
their will and intended to adopt it as their will. Although courts have recently
emphasised the difference between a lack of knowledge and approval and undue
influence, we think this differentiation will be reinforced by a statutory provision. It will
ensure that knowledge and approval is not used to assess whether the testator
wanted to make the will in the terms they did, which is addressed by the law governing
testamentary undue influence. Recommendation 20 will ensure that the law governing
testamentary undue influence can better play its role in that the content of the will
reflects the freely formed intentions of the testator.
9.204 In reforming the law of knowledge and approval, our aim is to restrict it to a “narrow”
function that assesses whether the testator approves the content of the document and
intends that document to be their will.1169 Our recommendation may also clarify its
meaning.
9.205 Our recommendation adopts the formulation of the requirement of knowledge and
approval by Lord Justice Chadwick in Hoff v Atherton that “the testator did know and
approve the contents of his will - that is to say that he did understand what he was
doing and its effect”.1170
9.206 It has become increasingly clear since the publication of the Consultation Paper that
this is the authoritative formulation of the requirement.1171 Moreover, we agree with
Lord Justice Lloyd’s statement in the Court of Appeal that it is a “convenient and pithy
paraphrase” of the meaning of knowledge and approval.1172
9.207 This formulation will ensure, as argued by Dr Catrin Fflur Huws and Penningtons
Manches LLP, that knowledge and approval will assess the testator’s understanding
of the implications and effect of their will.1173 We agree with the Law Society that our
provisionally proposed formulation of knowledge and approval included the
requirement to understand the nature and effect of the will: for a testator to intend the
terms to be incorporated and given effect in the will, as we proposed, they must first
understand what those terms and effects are. However, by more expressly stating that
the testator must understand the effect of their will, the formulation in Hoff v Atherton
ensures that this aspect of the requirement is not lost or overlooked in some cases.
9.208 Whether the court must directly assess the testator’s understanding of the effect of
their will is a matter of evidence and inference. In some cases, the courts do not need
to directly assess the testator’s understanding of the effect of their will because there
is no doubt that they did: for example, where the will has been duly executed and its
content is relatively straightforward. In more complex cases, such as in Leonard v
Leonard,1174 assessing the testator’s understanding of the effect of the will may be
crucial to determine whether they had the requisite knowledge and approval.1175
9.209 Placing the requirement for knowledge and approval on a statutory footing, and
phrasing it along the lines expressed by Lord Justice Chadwick in Hoff v Atherton, will
not result in testators being required to understand the legal effect of their will. We
think the case law is clear that what is required is a broad understanding, rather than a
legal understanding, of the effect of the will. 1176However, placing the requirement in
statute provides an opportunity to put the point beyond doubt.
9.210 We have not adopted the suggestion of Henry Fairbairn that knowledge and approval
should require the testator to know which assets they have, who should inherit which
asset and the value of the gift. 1177Some of these elements may, on the facts of the
case, be relevant to the court’s assessment of the testator’s understanding of the
content of the will and its effects. But we think that the effect of including these
requirements in statute would too closely align the requirement for knowledge and
approval with the requirement for testamentary capacity. It might make the
requirement for knowledge and approval stricter than it is under the current law, which
we do not think is warranted.
9.211 We have not followed Professor Roger Kerridge’s and the Society of Legal Scholars’
suggestions that the requirement of knowledge and approval should be abolished.
They argued that it is superfluous in the light of the requirement for capacity and the
doctrines of undue influence and fraud. We think that each of these requirements and
doctrines play distinct roles, and that our recommendations will help to ensure that
each continues to do so.
9.212 Moreover, Professor Roger Kerridge’s and the Society of Legal Scholars’ proposals to
abolish the doctrine are centred on a concern that the doctrine of knowledge and
approval historically developed to cover suspicious circumstances that implicitly
suggested fraud enacted by a legal professional involved in writing the will.
9.213 We agree that the law should clearly address instances where a will is made in
suspicious circumstances, including where there are suspicions of misbehaviour.
However, we think that the term “suspicious circumstances” is broad and can cover a
range of different issues, which different doctrines might be best placed to address.
On the one hand, suspicions that a testator has been coerced into making their will,
but knew perfectly well what the will contained, are appropriately dealt with by
testamentary undue influence, such as in Oliver v Oliver.1178 Moreover we think that
our recommendation to enable undue influence to be inferred will more effectively
enable a route to challenge a will where there is evidence which provides reasonable
grounds to suspect undue influence. On the other hand, suspicions that the terms or
the effect of the will do not reflect the testator’s intentions, or what they thought would
be the effect of their will, could lead to a finding of a want of knowledge and approval,
for example, as in Bond v Webster. 1179Where there are suspicions of fraud, the will
could be challenged through the existing law on fraud, including fraudulent calumny.
9.214 Dr Brian Sloan suggested that we should make a recommendation to clarify in what
circumstances knowledge and approval will be presumed. However, we think that our
approach to reform to clarify this area of the law may help to lessen any need to
prescribe the operation of presumptions in the area of knowledge and approval. 1180We
also note that in more recent case law these presumptions have been treated as
neither formal nor legal, but fact-specific evidentiary presumptions that arise “as a
matter of common sense and authority”, 1181which the court will consider in a holistic
assessment. We think it is unnecessary to place these existing presumptions on a
statutory footing.
9.215 We agree with the majority of consultees that the exceptional rule to knowledge and
approval in Parker v Felgate 1182should continue to apply and so we make a
recommendation along these lines.
9.216 As we explained in Chapter 2 in the context of capacity, we think that the rule in
Parker v Felgate strikes the right balance between protecting testamentary freedom
and providing safeguards against abuse.1183 This balance is also needed in relation to
knowledge and approval.
9.217 Despite suggestions by some consultees, we do not make any recommendations to
limit the circumstances in which the rule can apply or to prescribe the type of evidence
necessary to establish it.
9.218 Some consultees suggested that the operation of the rule should be restricted such
that it can only apply if the testator executes the will a short time after giving
instructions for it. This change would be significant. In Perrins v Holland, where the
Court of Appeal affirmed the rule in Parker v Felgate, the will was executed a year and
a half after giving instructions. 1184We have not heard of any problems arising in
practice with the application of the rule even where there has been a significant delay.
Moreover, having not consulted on this change, we would be hesitant to recommend
it.
9.219 We agree with Lord Walker of Gestingthorpe that there must be reliable evidence of
the instructions given for the rule in Parker v Felgate to apply. As he suggested, this
evidence may take the form of a contemporaneous written note. However, we think
that the courts are best equipped to determine what type of evidence is sufficient to
satisfy the requirement that the testator gave instructions which were later reflected in
the will.
9.220 We recommend that the requirement that the testator has knowledge and approval
of the contents of their will should require that the testator understands that they
were making a will, and the content and effect of their will.
9.221 We recommend that the rule in Parker v Felgate that applies to knowledge and
approval should be retained.
9.222 The draft Bill for a new Wills Act enacts these recommendations in clause 4. Clause 4
outlines the general requirements for knowledge and approval, and the exceptional
requirement for knowledge and approval, as provided in the rule in Parker v Felgate,
where the testator loses capacity between giving instructions and executing their will.
It does not amend the law in relation to when knowledge and approval will be
presumed, leaving the current common law on this point in place and unaffected by
our placing the requirement for knowledge and approval on a statutory footing.1185
9.223 We explained in the Consultation Paper that the general rule in probate litigation is
that costs follow the event, so that the unsuccessful party pays their costs and those
of the successful party. 1186We noted that there are two exceptions to this rule in
contentious probate cases: costs will be paid from the estate where the 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.1187
9.224 We noted that, currently, a person who unsuccessfully claims undue influence is more
likely to face adverse consequences in costs than a person who unsuccessfully claims
lack of knowledge and approval.1188
9.225 Our recommendations in this chapter seek to confine the scope of knowledge and
approval so that undue influence is instead pleaded where there are suspicions that
the testator was coerced into making the will in the terms that they did. In the
Consultation Paper we noted that having to plead undue influence rather than want of
knowledge and approval could be seen to increase claimants’ risk of being sanctioned
in costs should their claims fail. In turn, the costs rule might disincentivise litigation
and therefore reduce the protection for vulnerable testators whose will might otherwise
be rightly challenged for undue influence.
9.226 We explained our view in the Consultation Paper that reform could instead mean that
there was a greater range of circumstances in which it would be reasonable to contest
a case on the basis of undue influence. A statutory doctrine of undue influence could
make it more reasonable to raise such claims where there are suspicions. Therefore,
there might be more cases in which the costs of an action alleging undue influence
would be paid from the estate.1189
9.227 We provisionally concluded that therefore there was no need to consider reform to the
costs rules. However, we asked consultees to tell us whether they believe that any
reform is required to the costs rules applicable to contentious probate proceedings as
a result of our proposed reforms to the law of undue influence and knowledge and
approval.1190
9.228 Only a few consultees were in favour of reforming the costs rules. The majority
considered that the costs rules should not be reformed.
9.229 Some consultees said that the current rules work well or are clear, flexible and well-
understood; accordingly, there is no need to reform them. Others agreed with our
reasoning in the Consultation Paper.
9.230 A couple of consultees suggested that we had been over-optimistic in our view of the
frequency with which parties will recover their costs from the estate under the current
costs rules, in relation to claims for knowledge and approval being more reasonable to
be made.
9.231 Where the question of undue influence arises, the Bar Council thought that the court
should have a wider discretion to make alternative costs orders. Similarly, while Lord
Walker of Gestingthorpe thought that “costs must ultimately be at the court's discretion
(exercised judicially)”, he was also strongly in favour of “making clear that the judge
need not follow Lord Justice Hodson in Cutliffe...”. Re Cutliffe provides the basis for
penalising in costs a party that unsuccessfully makes a claim of undue influence. 1191
9.232 We remain of the view that our recommendations in relation to undue influence and
knowledge and approval will not result in unfairness in terms of who pays the costs of
proceedings. Our recommendation that undue influence can be inferred where there
are reasonable grounds to suspect it will mean that there will be a greater range of
circumstances in which the court would consider it to be reasonable to contest a case
based on undue influence. As a consequence, applying the current approach to costs
in probate cases, it will be more likely that the costs will be paid from the estate even
where the claim is unsuccessful.
9.233 Accordingly, we do not recommend any reform to the costs rules that apply in probate
cases.
10.1 In England and Wales, the age of testamentary capacity, or the age of eligibility to
make a will, is 18 years old.
10.2 In the Consultation Paper, we considered two possible reforms in relation to children
making wills. First, we considered whether the age of testamentary capacity should be
lowered, provisionally proposing that it should be reduced to 16 years of age.
Secondly, we considered whether an absolute rule is necessary. We did not form a
view on this second question. We asked an open question as to whether the courts
should have the power to authorise a child under the age of testamentary capacity
(who we refer to as “underage”) to make a will, and, if so, who should be permitted to
determine the underage child’s capacity at the time the will is executed.
10.3 We now recommend that the age of testamentary capacity should be lowered to 16
years of age. As we discuss in Chapter 3, we think this policy should be carried over
to the statutory wills context, lowering the minimum age of eligibility for the Court of
Protection to make a will for a person.
10.4 We also recommend that the Family Court should have the power to authorise an
underage child, of any age, to make a will, using the common law Gillick competence
test 1192to determine whether the child has the necessary understanding.
10.5 In making these recommendations, we do not think there will be high demand among
children to make a will. Both recommendations are primarily aimed at children dealing
with tragic circumstances, who have been forced to contemplate their own deaths.
They might also assist children with significant independent assets. These
recommendations seek to give such children the same autonomy or testamentary
freedom that adults enjoy, so that they may decide how their estates should be
distributed, in order to avoid injustice or unfairness arising from the application of the
intestacy provisions.
10.6 The requirement that the testator be at least 18 years of age at the time they execute
their will is absolute, with no exceptions: if a person under the age of 18 makes a will,
it is invalid.1193
10.7 However, legal age requirements in England and Wales vary. A person must be 18 to
vote in UK Parliamentary elections, 1194buy alcohol or tobacco, or get married; 1195but can
vote in Senedd elections, join the army (in a non-combat role), leave school, consent
to sexual activity, live alone, and are presumed to have capacity to make medical
decisions at 16.1196
10.8 Other jurisdictions allow people to make wills at lower ages. For example, in Scotland,
the age of testamentary capacity is 12 years of age, and in British Columbia in
Canada it is 16 years.1197
10.9 Some other jurisdictions have moved away from an absolute rule. For example, in
New South Wales, while the age of testamentary capacity is 18, the court “may make
an order authorising a minor .. to make or alter a will in the specific terms approved
by the Court”.1198 Similar powers exist in other jurisdictions in Australia, in particular, in
Queensland,1199 South Australia, 1200Victoria,1201 the Australian Capital Territory, 1202the
Northern Territory1203 and Tasmania.1204 They also exist in New Zealand1205 and in Alberta,
Canada.1206
10.10 In the Consultation Paper, we considered two possible reforms: lowering the age of
testamentary capacity and introducing a discretionary power to authorise a child under
the age of testamentary capacity to make a will.
10.11 In the Consultation Paper, we explained that we could see two potential motivations
for reform to the age of testamentary capacity: 1) injustice or inconvenience caused in
certain cases, and 2) inconsistency with other areas of the law.16
10.12 We noted that injustice or inconvenience might be caused due to the invariable
application of the intestacy rules when a child dies. In most cases, the intestacy rules
would result in the deceased child’s estate being divided between their parents, with
the parents jointly administering the estate.17 We outlined two types of case which
suggested that reform was required.
10.13 The first type of case was illustrated by Re JS (Disposal of Body). In that case, a 14-
year-old girl - JS - suffering from terminal cancer wished to have her body frozen for
cryonic preservation, in the hope of resuscitation and cure in the distant future. Her
mother supported this wish, but her estranged father did not. Since JS could not make
a will under which she could appoint her mother as an executor to carry out her
wishes, her father would have a say in what happened to her body when she died. JS
therefore applied to the court to address the matter before she died. This novel case
was resolved by Mr Justice Peter Jackson (as he then was). He made a prospective
order appointing JS’s mother as the sole administrator of her estate and granted an
injunction preventing her father from applying for a grant of administration or
interfering with the arrangements for JS’s body. JS died, as anticipated, shortly after
the judgment, and her body was cryopreserved as she had wished.18
10.14 The second type of case was one in which an estranged parent would, under the
intestacy rules, inherit substantial assets from their child on their death, despite their
lack of contribution to and support for their child during their life. We noted that this
issue could arise where a child had received a large award as a result of a personal
injury claim or had been left money by a relative.19 We gave a case from Queensland,
Australia, Re K, as an example: K, who was 16 years old, was likely to receive a large
settlement due to a motor vehicle accident in which he suffered severe injuries; K’s
mother had acted as his sole carer for many years, and he was estranged from his
father.20
10.15 In the Consultation Paper, we also considered other areas of the law in relation to the
capacity of children to make decisions, noting the variation.
10.16 We outlined that, under the common law, children are protected when they enter
contracts or make gifts, and may rescind a contract or gift if they change their minds.21
We noted Mark Glover’s analysis that children require less protection when making a
will than when making a contract, because the characteristics of a will protect against
17 Administration of Estates Act 1925, s 46; Non-Contentious Probate Rules 1987 (SI 1987 No 2024), r 22.
18 [2016] EWHC 2859 (Fam), [2017] 4 WLR 1, under the Senior Courts Act 1981, s 116, or alternatively under
the inherent jurisdiction of the High Court; Consultation Paper, para 8.13.
rash decisions and prejudice: a will is revocable and the consequences of
testamentary decisions will not be experienced by the child.1207 We agreed with his
conclusion that an absolute prohibition on children making wills is not supported by
adequate policy reasons. However, we were also mindful that decisions in wills are
more serious than the decision to enter a simple contract during everyday life,
meaning that a higher level of understanding is necessary to appreciate the effects of
a will.1208
10.17 We also outlined a number of statutory health and welfare provisions which require a
threshold age of 16 or 17: they include that children who are 16 are presumed to have
capacity to consent to surgical, medical or dental treatment as if they were of full age1209
and may consent to accommodation by a local authority.1210 Although 18 is the
threshold age for some political, behavioural and purchasing decisions,1211 we
provisionally concluded that decisions about property and the disposal of one’s body
are more akin to medical and social welfare decisions.1212
10.18 We therefore made a provisional proposal to lower the age of testamentary capacity
from 18 to 16 years of age.1213
10.19 We also explored in the Consultation Paper the possibility of softening the edges of
the absolute rule, by allowing children below the threshold age (whether it was kept at
18 or lowered to 16) to make a valid will if they had sufficient understanding to do so.
We explained that some jurisdictions had taken this approach, but we did not
ourselves form a view as to whether it was an appropriate policy to adopt.1214
10.20 We explained that a discretionary rule suggested a parallel with the concept of Gillick
competence, 1215under which children under the age of 16 can give consent to medical
treatment if they are “mature and intelligent enough to understand the proposed
treatment or procedure” regardless of their age. 1216We thought that applying a similar
approach to the wills context could enhance the UK’s compliance with its international
law obligations, under the UN Convention on the Rights of the Child.1217
10.21 Doing so would raise the question of who should determine if the underage person
has the necessary understanding to make a will. In the medical context, it is usually a
doctor or other clinician who makes a contemporaneous assessment.
10.22 We considered that either a court or a professional employed to draw up the will could
be required to make the assessment in the wills context. We noted that if solicitors
could conduct the assessment, this would be less expensive, but would require the
will to be professionally drawn up. But we also noted that these cases were likely to be
rare and involve serious and sensitive issues, factors which suggested that the Family
Court might be better suited to make the assessment.
10.23 We also noted that the jurisdictions which had introduced a discretionary rule had
given the power to the courts. 1218We explained that there were few reported cases but
provided an outline of two of them to illustrate the benefits of introducing a
discretionary power.1219
10.24 We did not make a provisional proposal, but asked an open question of consultees as
to whether the courts should have the power to authorise an underage child to make a
will, and, if so, who should be allowed to determine the underage child’s capacity at
the time of execution.1220
10.25 The majority of the consultees who responded agreed with our provisional proposal
that the age of testamentary capacity should be reduced from 18 to 16 years.1221
10.26 Among responses agreeing, a common theme was that 16- and 17-year-olds have the
maturity necessary to make a will. A few consultees drew a comparison with the
requirement for mental capacity to make a will under the common law Banks v
Goodfellow 1222test, and suggested that most 16-year-olds would have the necessary
cognitive ability. Some consultees thought that the comparisons we drew in the
Consultation Paper with other areas of law in relation to 16- and 17-year-olds were apt
or generally agreed that a reduction to 16 would be more consistent with other areas
of the law. The Chancery Bar Association thought that the proposal “would ensure
consistency with the approach adopted by the Mental Capacity Act 2005”, adding that
“it does not seem to us that there is any compelling reason for a distinction between
that regime and that relating to the law of wills”. Two consultees thought that reducing
the age would be consistent with the general direction of travel for legal capacity.
10.27 Dr Brian Sloan1223 and Professor Daniel Monk thought that a reduction in the minimum
age would promote children’s rights. A few other consultees, including Mills & Reeve
LLP, 1224thought that children should be entitled to leave their assets “to whoever they
wish”, provided they have the sufficient understanding to do so.
10.28 Several consultees agreed with the point that children may have substantial assets,
including due to personal injury compensation payments. Some consultees also
agreed that the intestacy rules would result in injustice in some cases, allowing
estranged or absent parents to inherit or make funerary decisions. The University of
Law Birmingham recounted an example involving an 18-year-old who had obtained
personal injury damages and used a will to disinherit her estranged and violent father;
she would not have been so able at an earlier age.
10.29 The City of Westminster and Holborn Law Society felt that it is especially important
that young parents should be able to appoint a guardian for their children by will. They
also supported lowering the age of testamentary capacity to 12.
10.30 Among consultees who disagreed, many expressed a general concern that 16- and
17-year-olds lack the necessary maturity to make a will. For example, whilst
recognising that “many 16-year-olds display maturity, and many adults, in turn, do
not”, Hugh James1225 was concerned about the possibility of inequitable results, for
example where a young testator disinherited their parents over a minor argument.
10.31 Some consultees suggested that 16- and 17-years-olds’ personal circumstances were
likely to be more volatile than those of older people. A will made at those ages was
therefore less likely to continue to reflect accurately their circumstances as they aged.
10.32 Four consultees expressed concern that 16- and 17-year-olds would be vulnerable to
undue influence from family or friends.
10.33 Some consultees drew parallels with the other matters for which 18 is the minimum or
otherwise relevant age for legal eligibility. These matters include voting (in UK
Parliamentary elections), 1226owning legal (as opposed to equitable) interests in land,
marrying without parental consent,1227 joining the armed forces without parental
consent, 1228refusing consent to medical treatment against the wishes of a parent, 1229and
ceasing education or training.1230 They also noted that 18 is the age under which the
Children Act 1989 defines a person as a child.1231
10.34 The Society of Legal Scholars drew together various of these examples to rebut the
suggestion that the general direction of travel was for 16 to be the threshold age. The
SLS argued that even where the law uses 16 as a threshold age, “in many of the
situations referred to, those aged 16 or 17 are not actually being treated in the same
way as if they were adults”.
10.35 Some consultees thought that 16 was arbitrary, with some noting that this proposal
would not have helped in the case of Re JS (Disposal of a Body)1232 given that JS was
14 years old when she died. Two consultees thought that the facts in that case were
exceptional and unlikely to arise again, so not a good reason to reform the law.
10.36 Many consultees thought that there was a lack of demand for 16- and 17-year-olds to
make wills and that our proposed change would affect few people. In particular, some
consultees doubted that people of that age have sufficient assets to warrant making a
will. For example, Boodle Hatfield LLP 1233said:
It is relatively rare for minors to have significant assets in their own names while
under age 18. Funds due to them from an inheritance or personal injury award may
well be held in trust for them contingently upon them attaining age 18 or later and so
a will would not be required for those assets in any event.
10.37 Two consultees thought that the Inheritance (Provision for Family and Dependants)
Act 1975 could ameliorate any hardship caused by the intestacy rules. This included
the Society of Legal Scholars, which cited Re B (Deceased),1234 where a girl had lived
with her mother in a bungalow bought partly with personal injury damages awarded to
the girl. When the girl died intestate, her interest in the bungalow would have been
inherited in equal parts by her mother and her estranged father. The Court of Appeal
held that there was jurisdiction to consider a claim by the mother under the Inheritance
(Provision for Family and Dependants) Act 1975.
10.38 STEP suggested that such demand as does exist could be served by a power for a
court to give effect to the testamentary intentions of 16- and 17-year-olds, or by an
adapted supported will-making scheme. Three other consultees thought that existing
laws could ensure arrangements could be made. In particular, a solicitor1235 thought that
the difficulties in some cases would be resolved with an appropriately drafted trust
instrument.
10.39 The Society of Legal Scholars generally questioned the rationale for children being
given the power to make a will. It remarked on the “adult orientation” of our reasoning
about inconvenience or injustice, which reflected views about equity between parents,
not any wishes of the child. Given the intestacy provisions, it suggested that if children
could make wills, those most likely to lose out would be their parents. The SLS asked,
“who is protected by the current prohibition against making a will under the age of 18:
the parent or the child?” The SLS further argued that more thought would be needed
about how the Inheritance (Provision for Family and Dependants) Act 1975 would
apply where a parent was disinherited under their child’s will.
10.40 Some consultees who were generally opposed to a change in the law nevertheless
saw merit in more modest reforms. These possibilities included lowering the age of
capacity to 16 only for certain people (members of the Armed Forces, those with life-
threatening illnesses and/or those who have children); lowering the age of capacity,
but providing that a will would be automatically rescinded when the testator reached
age 18; allowing statutory wills to be made for all children (not only 16- and 17-year-
olds); and allowing children to make a will with the authorisation of a court.
10.41 Two consultees suggested we should consider evidence from Scotland, where the
age of testamentary capacity is 12, including in relation to how many such wills are
made.
10.42 Three consultees - including the Law Society and STEP - flagged the need to keep
the minimum age for statutory will-making in line with the age of testamentary
capacity.
10.43 Of the consultees who responded, the majority were in favour of the courts having the
power to authorise underage children to make a will.1236
10.44 Many of the responses we received in favour of an authorising power were expressed
in general terms. They tended to emphasise either the need for flexibility in protecting
children, or the inherent desirability of children being able to exercise testamentary
choice. Dr Brian Sloan drew a parallel with “those of advanced age who teeter on the
edge of capacity for different reasons”. He said that it was arguable that society
should go to the same lengths to assist children who wish to make a will as it does for
the elderly.
10.45 Some consultees, including those agreeing and disagreeing with the creation of a
power, thought it would be rarely used. For those opposed, they felt this meant such a
power was unnecessary. Three consultees preferred extending the scheme for
statutory will-making to children. Other consultees referred to other options (such as
using the dispensing power for children) or to existing provisions allowing courts to
appoint administrators or settle the child’s property on trust under the Mental Capacity
Act 2005 (“MCA”).
10.46 In terms of the test to be applied in assessing the child’s understanding, the Chancery
Bar Association disagreed that the common law Gillick competence test is entirely
appropriate for the will-making process. Dr Richard Hedlund 1237identified section 16 of
the New South Wales Succession Act 2006 as a good example of what an authorising
power might look like.1238 As a model for the test, the Law Society suggested the one
contained in the 2015 Code of Practice to the Mental Health Act 1983.1239
10.47 Consultees responding to our question about who should be allowed to assess
underage capacity generally favoured it being the court. Those giving reasons
explained that the court has a duty to consider the welfare and best interests of the
child and that its involvement could prevent further litigation. A few consultees
specified that it should be the Family Court, and a few the Court of Protection. The
Chancery Bar Association reasoned that the Family Court is the most appropriate
decision-maker because it “is used to dealing with both minors and sensitive family
situations”.
10.48 Several consultees suggested that capacity should be determined by a medical
professional. However, the Chancery Bar Association doubted the usefulness of
medical evidence, as the issue is one of maturity.
10.49 Several more consultees suggested that capacity be determined by the professional
who drafts the will, with some noting the relative lack of expense compared to a
requirement that the court be involved.
10.50 The argument that children should be able to make wills has recently been made in
relation to digital assets, or assets generated due to digital platforms. In arguing that
child social media influencers should be able to make testamentary dispositions,
Symphony Munoz discusses a 16-year-old TikTok star who made US$4 million from
her posts in 2019, the first year she used the app.1240 Natalie Banta more broadly
argues in favour of children being able to make testamentary dispositions in relation to
their digital assets. She notes that most children - “digital natives”, having grown up in
an online world - own digital assets:
minors create and possess digital assets with troves of information, pictures, and
writings about their young lives. This information is valuable to surviving family
members as well as potential marketers and industries.1241
Banta argues that allowing children succession rights over their digital assets will
promote their best interests, self-determination and privacy rights.
10.51 We have concluded that the age of capacity should be reduced from 18 to 16 years of
age. The majority of consultees agreed with this policy. Although we think the issue is
finely balanced, we nevertheless think this is the best course, in particular in light of
our recommendation to adopt the test in the MCA as the test for testamentary
capacity.
10.52 Consultees were generally of the view that 16- and 17-year-olds had sufficient
maturity to make a will such that they would be considered to have capacity if the
Banks v Goodfellow1242 or MCA test applied to them.
10.53 Some consultees raised concerns that children would be particularly vulnerable to
undue influence, including by their parents. We agree that a child might be susceptible
to persuasion, particularly in a situation where they live with and are cared for by one
parent or guardian but not the other. Nevertheless, on balance, we do not think this
risk alone should prevent us from recommending reform in relation to 16- and 17-year-
olds.
10.54 Children making wills, like all testators, will be protected from undue influence by the
doctrine of testamentary undue influence, which renders wills made as a consequence
of such influence invalid. In Chapter 9, we make a recommendation to strengthen the
protection against undue influence by allowing the court to infer undue influence. This
inference will arise where there are reasonable grounds to suspect undue influence,
considering, among other things, any relationship of influence between the testator
and the person alleged to have influenced them, and that person’s involvement in the
making of the will. 1243If a child were to make a will to benefit their sole caregiver parent,
for example, any allegation of undue influence by the parent upon the child would lead
to the conduct of that parent being closely scrutinised. We nevertheless agree that
influence, including influence that falls short of undue influence, is a concern. We did
not consult on whether any specific requirements or protections should be in place for
wills made by 16- and 17-year- olds. Were our recommendation to be implemented,
further consideration could be given to whether any specific measures should be
imposed. This could include, for example, consideration of whether the will should be
executed in the presence of a solicitor or will writer.
10.55 We agree with consultees that there is and will be only a low demand among 16- and
17-year-olds to make a will. However, we do not think that is a persuasive argument
against reform. There is low demand among 18- and 19-year-olds to make a will.
Moreover, the main benefit of the change will be to allow children to make a will
where, due to their specific and tragic personal circumstances, they are forced to
contemplate their own death at a young age, for example due to degenerative
conditions or other significant health issues. This reform will enable such children to
appoint an executor, who will carry out their wishes about their funeral and remains.1244
It will also assist children who have significant assets, and for whom the intestacy
provisions would not reflect their wishes (for example because one of their parents
has not played a part in their upbringing). Although many children are unlikely to have
significant assets, some will, including those who have received compensation as a
result of a personal injury or other claim, been left or given money by their families, or
earned money through, for example, social media platforms.
10.56 The Society of Legal Scholars thought that our proposal was based more on concepts
of equity between parents than enabling 16- and 17-year-olds to have a say over what
happens to their estate. We think that in some cases these issues are closely aligned.
Children who are estranged from or who have been abandoned by one of their
parents might agree with an adult’s view of the equity of the situation: that the parent
or person who has provided for all of their comfort and care should receive their estate
on their death. This was the strongly held view of K, in the Queensland case we
referred to in the Consultation Paper.1245 It was also the view of the child LCJ, in the
South Australian case we discussed: she wanted her maternal grandparents, who had
raised her after her mother died when she was 2 years old, to benefit under her will
more than her father, with whom she only had irregular contact. 1246However, in other
cases, a child might disagree with an adult’s view of the equity of the situation. Under
our recommendation, a child will be empowered to make a will that reflects their own
view of how their assets should be distributed, including, for example, by making a gift
in their will to a charity supporting others affected by the same illness.
10.57 This point also relates to a premise that underlies testamentary freedom in general:
that an individual is best placed to determine who among their family and friends are
most deserving or most in need of assistance, as the individual can take into account
their own specific circumstances in a way that the intestacy rules cannot.1247
10.58 We also do not think that the potential ability of parents to claim under the Inheritance
(Provision for Family and Dependants) Act 1975 provides a good reason against
lowering the age of testamentary capacity. It is true that it might provide a remedy
where the inability of a child to make a will causes financial hardship for their parent
on the child’s death. But a remedy under the 1975 Act is not a substitute for
testamentary freedom.
10.59 Some consultees worried that children might be more likely than adults to be
motivated to make wills for frivolous reasons. We cannot discount the possibility that a
16- or 17-year-old might use their will to disinherit their parents for immature reasons,
just as we cannot discount the possibility of any testator being spiteful or frivolous.
However, we think the Inheritance (Provision for Family and Dependants) Act 1975
could provide a remedy in appropriate cases: one example might be where the parent
was financially dependent on the child after giving up their employment to provide
them with full-time care.1248 In cases where the parent was not dependent on the child
so could not make an application under the 1975 Act, we agree that this proposal will
reduce protection for parents: a child could deny any inheritance to their parents,
including for a silly or even spiteful reason. But we do not think that parental
responsibility should necessarily translate into a right to the child’s own property when
they die, particularly if the child dies when they are on the cusp of the age of majority:
indeed, the Children Act 1989 provides that having parental responsibility does not
affect any rights the person has to their child’s property in the event of their death.1249
Parents of children are disinherited under the intestacy provisions where the child has
married or entered a civil partnership, or had their own child. 1250We therefore do not
agree that, if the age of testamentary capacity is lowered to 16, that the 1975 Act
should be amended, so as to create a category for parents (or guardians) to apply on
the basis of their status as parent (or guardian) alone.
10.60 We accept that the age of capacity varies significantly across the law. We also accept
that there is no uniform policy direction to reduce the age of capacity in the law. In
addition, we acknowledge that, to a degree, any minimum age for testamentary
capacity is arbitrary: people mature at different rates, and there is no major cognitive
development that invariably takes place on an adolescent’s 16th or 18th birthday.
10.61 Viewed in isolation, the arguments for reducing the age of testamentary capacity to 16
years old are sufficiently equivocal to point against reform. However, in
Recommendation 1 we recommend that the MCA test of capacity should apply to will-
making. The MCA applies to people who are 16 years of age and older: from that age,
it presumes they have capacity in relation to decisions about their property and
affairs. 1251We think that adopting the MCA as the test of testamentary capacity tips the
balance in favour of reducing the age of testamentary capacity to 16. Having
recommended that the MCA test be adopted, we think there would need to be good
policy reasons not to lower the age to make a will to 16. That is, we think we would
need strong reasons for will-making to continue to be an exception to the general
application of the MCA to people from the age of 16 (as is currently the case for
statutory wills).1252 We do not think that the concerns about 16- and 17-year-olds
outlined above are sufficient to justify the age of testamentary capacity remaining out
of line with the MCA in this context.
10.62 We have carefully considered, but ultimately rejected, consultees’ alternative
suggestions. For example, we do not think that the issues in relation to 16- and 17-
year-olds can be satisfactorily resolved by giving the Family Court the power to permit
them to make a will if they are judged competent to do so (as we recommend below in
relation to children under 16). This approach would not address the inconsistency with
the age of capacity in the MCA generally as compared to making a will. It would also
not address the issue of a 16- or 17-year-old - someone who we think would usually
have capacity under the MCA test - needing to apply to the court in order to ensure
that their decisions about their remains after their death are given effect: without the
option to appoint an executor in their will, they will otherwise have to rely on the
court’s power to appoint an administrator on their behalf.1253
10.63 We also think it would cause uncertainty to allow children to make a will but for such a
will to be automatically revoked when they attain the age of 18. Like the automatic
revocation of a will on marriage or civil partnership, which we recommend be
abolished in Recommendation 30, a rule of automatic revocation of children’s wills
may not be widely known, resulting in people who thought they had a valid will dying
intestate. We think this type of rule would operate contrary to the principle of
testamentary freedom.
10.64 We note that it does not appear that lowering the age of testamentary capacity would
have any effect on the appointment of guardians. Children who are parents are
treated as parents for the purposes of the Children Act 1989, 1254with no apparent age
limitation on their ability to appoint a guardian under section 5. It therefore appears
that 16- and 17-year-old parents can already appoint guardians for their children.
Under our recommendation, they will now be able to do so in a valid will.
10.65 We recommend that the age of testamentary capacity should be lowered to 16.
10.66 This recommendation to lower the threshold age at which a person can make a will is
enacted in clause 2 of our draft Bill for a new Wills Act. Clause 2 treats everyone 16
and older the same in terms of their capacity to make, alter, revoke or revive a will,
requiring only that they have the testamentary capacity, which by clause 23(3) will be
governed by the MCA. Accordingly, like adults, 16- and 17-year-olds will benefit from
the statutory presumption that they have testamentary capacity under section 1(2) of
the MCA.
10.67 Because 16- and 17-year-olds will be able to make a valid will, a 16- or 17-year-old
will also be able to express consent in their will for the purposes of section 2 of the
Human Tissue Act 2004. The 2004 Act applies in Northern Ireland as well as England
and Wales, such that consent in a will that is valid in England and Wales is recognised
as valid consent in Northern Ireland. As a consequence, children of 16 and 17 years
of age will be able to express consent under the 2004 Act in Northern Ireland in a will
that is valid under the law of England and Wales, despite the fact that children cannot
make a valid will in Northern Ireland. We consider this a consequential amendment,
because it will remain the case that any valid will in England and Wales can express
consent under the 2004 Act in Northern Ireland.
10.68 We have also concluded that the Family Court should have a power to authorise an
underage testator to make a will, using the common law Gillick competence test. As
we explain below, the common law competence test will be informed by what a person
is required to be able to understand under the test for testamentary capacity, which
under our recommendations will be governed by the MCA. 1255This power will help to
ameliorate the inherent arbitrariness of a bright line rule for the eligibility age of
testamentary capacity. The power will also apply to allow a child to alter, revoke or
revive a will.1256
10.69 Most consultees were in favour of creating a discretionary power. Those consultees
who opposed a discretionary power did not, in our view, offer strong reasons against
it.
10.70 We agree that it would be seldom used, but we do not think that points against having
such a power. Indeed, we think it suggests that creating one will not result in undue
amounts of litigation.
10.71 We also disagree that the issues which arise due to underage children being unable to
make a will can be addressed in another way.
10.72 We disagree that the ability to make a will or another disposition for underage children
should be governed by the MCA under the Court of Protection’s existing powers to
make a statutory will for a person or to order a settlement of property for a person,
including in the latter case for a child under 16 who the court considers will continue to
lack capacity at the age of 18. These powers under the MCA are governed by the
MCA test for capacity and the best interests test. Both are concerned with decision-
making in relation to people who lack capacity due to an impairment or disturbance in
the functioning of their mind or brain. They are not concerned with decision-making on
behalf of children, whose capacity is impacted by youth and immaturity, not by
cognitive impairments. We do not think the power to order a statutory will or a
settlement aptly addresses the specific issues that arise in relation to underage
children who want to make a will.
10.73 We also do not think the court’s power under section 116 of the Senior Courts Act
1981 to appoint an administrator entirely addresses the issue. It can be used, as it
was in Re JS (Disposal of Body), to address concerns about funerary decisions. But it
cannot be used to create a will for a person. And although there is no authority on this
point, we also do not think the inherent jurisdiction of the High Court would allow the
court to make a will for an underage child, or anyone, outside the rules in the Wills Act
1837.
10.74 Our recommended dispensing power will also not address the situation. As we explain
in Chapter 6, the dispensing power will allow a record which does not comply with the
formality requirements to be accepted as a valid will, if the court is satisfied that it
demonstrates the testator’s testamentary intentions when it is made and continues to
do so until their death. But the requirement that the testator meets the threshold age -
whether 18 or 16 - is not a formality requirement: it is a substantive requirement, an
aspect of testamentary capacity. The dispensing power will not allow a record to be
accepted as a valid will for a person who lacked the capacity to make one.
10.75 We therefore think that we should recommend a discretionary power under which an
underage child could be authorised to make a will.
10.76 We think that the power should be given to the court, specifically the Family Court. We
do not think that this power should be given to a solicitor or will writer: we think the
court’s involvement will discourage further litigation about the validity of the will if the
underaged child dies and will ensure the underage child’s best interests are properly
considered. We think the Family Court is the most appropriate court to deal with these
issues given its experience with children and sensitive family matters (as noted by the
Chancery Bar Association).
10.77 We moreover think that the child’s competence should be assessed by the court itself.
If an application must be made to the court, the fundamental issue before the court will
be whether the underage child is competent to make a will. The court can rely on
expert evidence in reaching its conclusion, but it does not seem helpful to require that
the ultimate assessment of the child’s competence be determined by anyone other
than the court. Nor does it seem helpful to dictate to the court from whom it should or
must receive expert evidence: we think that decision is best left to the Family Court
itself.
10.78 We also think that the common law Gillick competence test should be the test used as
an assessment of the child’s competence to understand what is necessary for them to
be able to understand to make a will. This is a different approach to that which the
Law Commission recently provisionally favoured in our Disabled Children’s Social
Care Consultation Paper. There, we provisionally favoured legislation setting out the
test for children under 16 to make social care decisions, with the statutory test based
on the functional test in the MCA. In that context, a significant factor is that the test is
applied by professionals, with evidence indicating that there are difficulties among
some professionals in understanding and applying the concept of competence.1257
10.79 However, in the wills context, we continue to think that Gillick competence is the most
appropriate test. It specifically assesses the understanding and intelligence of a child
to determine if they are competent to make a decision, so “reflects the child’s
increasing development to maturity”.1258 We think it is maturity, rather than cognitive
ability, which will be the more relevant consideration for most children wishing to make
a will. Moreover, the Gillick competence test is already widely used in the family law
context by the Family Court.1259 It is worth noting that, under our recommendation, only
the Family Court will apply the test. Legal professionals will need to be able to
understand the test in order to give advice in relation to applications to the Family
Court, but we do not think the competence test will cause confusion in this context
among legal professionals.
10.80 We do not think the MCA test, which will apply to adult testators, should directly apply
to assess whether an underage child should be able to make a will. As we noted
above, the MCA test for capacity uses as a threshold an impairment in the functioning
of the mind or brain, and youth and immaturity are not impairments. We also do not
think the presumption of capacity under the MCA 2005 should apply to underage
children in relation to their understanding.1260
10.81 The MCA test is nevertheless relevant. The substance of what the underage child will
need to be able to understand under the Gillick competence test in the wills context
will be similar to what an adult making a will needs to be able to understand under the
test of testamentary capacity. As explained by Mr Justice Cobb in Re S (A Child)
(Child as Parent: Adoption: Consent):
As the decisions which S faces in this case (ie accommodation of a child, consent to
adoption) are not uncommonly encountered by adults about whom issue is raised as
to capacity, the approach of the courts to decision-making by adults and children
ought (with appropriate adjustments to reflect age and maturity) in my judgment to
be complementary. Therefore, in applying the Gillick test in the context of
determining the competence of a child to make decisions, I regard it as appropriate,
and indeed helpful, to read across to, and borrow from, the relevant concepts and
language of the Mental Capacity Act 2005 .. .76
10.82 This is essentially the same approach suggested by the Law Society in its consultation
response. It recommended to us as a model the questions set out in the Mental Health
Act 1983: Code of Practice for assessments of capacity of children to make medical
decisions. These questions apply the Gillick competence test while using the elements
of understanding necessary under the MCA.1261
10.83 Accordingly, under our recommendation, the Family Court will assess if the underage
child is Gillick competent, considering their maturity and understanding. The matters
that the child must be able to understand will be the same as those necessary under
the MCA test (once adopted in accordance with our recommendation in Chapter 2),
with the relevant information for the testamentary context reflecting the Banks v
Goodfellow test:
(1) that they are making a will, and the effect of their testamentary disposition;
(2) the extent of their estate and therefore the property that can be disposed of in
their will; and
(3) those who have claims on their estate.1262
In order for the court to be able to assess the child’s competence, it will need to know
the draft terms of the will. As in relation to testamentary capacity generally, a complex
will requires a higher level of capacity or competence to be able to understand it.
Accordingly, under our recommended power, the court will authorise the child to make
a will in particular terms, with the court considering the child’s competence in the light
of the proposed will.
10.84 A child’s best interests also features in assessments of Gillick competence. As we
explained in our Building Families Through Surrogacy Report:
An assessment of whether a child is Gillick competent will factor in whether they can
truly understand what is in their best interests, but it is also possible for a competent
child to seek to make a decision that is against their best interests. In cases where
this would have severe impacts, the court can override their decision by exercising
its inherent jurisdiction, although a child’s preferences will be treated as important
when determining their best interests.1263
10.85 We do not think it is necessary to prescribe any role for the court to consider the
child’s welfare or best interests, as those are matters already required to be
considered under the common law Gillick test and under the Children Act 1989. And
we do not think it is necessary to interfere in the development of the role that best
interests play in the Gillick competence test, or the scope of the application of the
Children Act 1989.
10.86 On this point, it is worth emphasising that we recommend that the Family Court has a
power to authorise an underage child to make a will; the power is discretionary. The
court will not be obliged to exercise the power. It may refuse to do so or may authorise
the child to make a will subject to conditions, including conditions crafted to protect
their best interests.
10.87 We do not recommend that there should be any limitations on the power. We
particularly do not think that there should be any lower age limit. We think any such
limit would be an arbitrary and unnecessary cut off; a requirement for competence can
best assess a child’s understanding and maturity in each individual case.
10.88 We do not consider that the power should be able to be exercised retrospectively, in
relation to a will that an underage child has already made. Given the court’s role in
assessing the child’s understanding, together with considering the child’s best
interests, we think the assessment should only be able to be made
contemporaneously.
10.89 It is also worth emphasising that the power we recommend is a power to authorise a
child to make a will, operating as a determination that the child has testamentary
capacity. However, the other requirements for validity will also apply, including the
formality requirements.
10.90 We recommend that:
(1) the Family Court should have the power to authorise an underage child to
make, amend, revoke or revive a will in particular terms;
(2) the common law test should be used by the court to assess whether the child
is competent to make, amend, revoke or revive the will as proposed;
(3) there should be no age requirement for a child to apply to be authorised to
make, amend, revoke or revive a will; and
(4) the power should not apply retrospectively.
10.91 This recommendation is enacted in clause 3 of the draft Bill. Clause 3 allows a child
under the age of 16 to apply to the court to be authorised to make, alter, revoke or
revive a will in specific terms.
10.92 To make the order authorising the child to make, alter, revoke or revive a will, the
court will be required to assess the child’s competence to do so. Clause 3(4) refers to
the child’s competence to make a will or a change to a will, rather than prescribing the
use of the Gillick test. This approach will enable developments in relation to the
competence test to be reflected in the wills context.
10.93 Only a child may apply to make their own will; no one else will be able to apply.
However, under the existing Family Procedure Rules 2010, 1264a solicitor acting for the
child will be able to apply on the child’s behalf, but such an application will only have
effect if the court so orders. Under the Rules, the court will appoint a children’s
guardian to safeguard the interests of the child. We recommend that the Rules should
be amended so that the child may conduct proceedings without a children’s guardian
if the necessary conditions are established: that the court or the child’s solicitor
considers that the child is able either to conduct the proceedings or to give instructions
in relation to the proceedings.1265
10.94 There is no time limit on the power in the sense of requiring the child to execute the
will within a specific period before the authorisation of the court lapses. However, in
the situation where there are concerns that the child’s understanding could
deteriorate, for example because of a progression of their disease, it would certainly
be best practice for the child to execute their will as soon as possible after the court
makes the order. If the court is concerned about the competence of the child
fluctuating, it can make its order subject to conditions, including that the child execute
the will during a specified period or during a specific time of day, in a specific place, or
in the presence of a specific person, in order to enhance the child’s competence or
best interests.
11.1 Wills express the testator’s intentions as to how their estate should be divided when
they die. Ideally, a will should give precise instructions to the executors about how to
distribute clearly identified property to clearly identified beneficiaries. However,
sometimes the testator’s instructions are not clear: the will might be drafted
imprecisely or contain mistakes.
11.2 Executors can ask the court to determine the true meaning of a will before the estate
is distributed in order to avoid accidentally distributing the estate otherwise than in
accordance with the will. Potential beneficiaries might also dispute the meaning of a
will.
11.3 To determine the meaning of the will, the court has powers both to interpret and rectify
it. In this chapter, we consider the necessity for reform of the rules and principles that
govern the court’s power to interpret and rectify wills.
11.4 In the end, we do not recommend reform to prescribe the order in which the court
must consider interpretation and rectification. We also do not recommend any
substantive reform to the interpretative provisions in sections 23 to 31 of the Wills Act
1837; however, as we explain, the draft Bill for a new Wills Act which accompanies
this Report restates the substance of these provisions in modern terms.1266
11.5 We do recommend that there should be a new interpretive provision to address a
lacuna in the law. The new provision will apply where the testator has made a gift to a
non-charitable body which, since the date of the will, has merged with another body or
has been reconstituted. We do not recommend that there should be any other new
interpretive provisions, and we also do not think that the scope of the existing
provision to allow direct extrinsic evidence of a testator’s intention should be
expanded.
11.6 The most significant reform we recommend in this chapter is in relation to rectification.
We recommend that its scope should be expanded, so that a will can be rectified
where the will fails to carry out the testator’s intentions due to a failure by the testator
or the drafter of the will to understand the meaning or effect of the words used in the
will.
11.7 Interpretation is concerned with ascertaining the meaning of the words used by the
testator. As we noted in the Consultation Paper, the question for the court is “what
does the document mean?” While the testator’s intentions may help to resolve
ambiguities in the will, interpretation is ultimately concerned with what the words in the
will mean, not what the testator intended the words to mean.1267
11.8 This exercise of interpretation is not necessarily straightforward. As remarked in
Borkowski’s Law of Succession:
The immeasurable richness of the English language - with its vast vocabulary and
variety of nuance - creates a minefield of potential problems for testators when
drafting wills. The testator who makes a homemade will may well find it relatively
uncomplicated to satisfy the required formalities to execute a valid will; but the
drafting of the will - involving the need to appreciate the precise significance of the
words used - is a more exacting task, requiring a certain level of expertise.1268
The interpretation of wills is governed by common law principles and presumptions
and some statutory provisions, making it a “vast” and “difficult” area of the law.1269
11.9 Historically, wills were usually interpreted literally, with the court looking at the
document itself to give the words used their ordinary meaning, or at least their
ordinary meaning from a lawyer’s point of view. 1270For example, under a strict version of
this approach, a gift of “my money” was a gift of cash, not stocks or shares, no matter
how improbable it was that the testator intended this result. 1271Centuries of case law set
out rules and presumptions to be applied, some of which were set out or modified in
the Wills Act 1837.
11.10 However, a move away from the literal approach to the intentional approach began at
the House of Lords in the 1943 case Perrin v Morgan, when Viscount Simon said:
the duty of a judge who is called on to interpret a will containing ordinary English
words is not to regard previous decisions as constituting a sort of legal dictionary to
be consulted and remorselessly applied whatever the testator may have intended,
but to construe the particular document so as to arrive at the testator's real meaning
according to its actual language and circumstances.1272
In that case, the testator’s gift of “all moneys of which I die possessed” was interpreted
broadly to include her stocks and shares.
11.11 The shift towards an intentional approach was reinforced by the enactment of sections
20 and 21 of the Administration of Justice Act 1982. In particular, section 21 of the Act
allows direct evidence of the testator’s intentions to be admitted to assist the court in
interpreting the will in certain cases of ambiguity (discussed in more detail below).
11.12 The most significant moment came recently, in 2014, when Lord Neuberger in Marley
v Rawlings elucidated the intentional approach in a case where a husband and wife
accidentally signed each other’s wills. Although the case was resolved by rectification,
Lord Neuberger considered the interpretation of wills. He explained:
Whether the document in question is a commercial contract or a will, the aim is to
identify the intention of the party or parties to the document by interpreting the words
used in their documentary, factual and commercial context.1273
11.13 Following Marley v Rawlings, the intentional approach is now firmly entrenched in the
court’s interpretation of wills. This modern approach is the same approach to
construction as that taken when construing contracts. To ascertain the intention of the
parties in the context of the words used, the court should consider the purpose of the
document, its other provisions, the facts known or assumed by the parties at the time
the document was executed, and common sense.1274
11.14 However, there are modifications to the approach which apply in the wills context: the
continuing relevance of the common law and statutory rules, and the specific rule
governing the admissibility of evidence of the testator’s intention.
11.15 The modern approach has not rendered the common law principles and presumptions
and statutory rules on interpretation irrelevant. As explained in Theobald on Wills:
It is neither necessary nor correct to interpret Marley as wiping the slate clean on the
interpretation of wills with the effect that centuries of learning on the meaning and
significance of language commonly (and uncommonly) used in wills is disregarded.1275
11.16 Some principles of construction happily co-exist with the intentional approach. In
Marley v Rawlings itself, Lord Neuberger explained that the “armchair principle” (under
which the court should place itself in the testator’s armchair and admit evidence of the
circumstances surrounding the testator at the time they made their will) 1276is consistent
with the intentional approach. 1277Similarly, the principle that the courts should consider
the will as a whole aligns with the contextual focus inherent in the intentional
approach.1278 The courts’ practice of considering the testator’s previous wills as an
interpretive aid could also be viewed as part of the context of the will, as a fact known
to the testator at the time of executing their will.1279
11.17 The continuing relevance of other common law principles and presumptions is also
apparent in the case law since Marley v Rawlings. For example, the courts have
continued to refer to the common law presumption that the testator did not intend a
partial intestacy, 1280and the common law principle that technical words should be given
a technical meaning.1281
11.18 The statutory rules of interpretation, in the Wills Act 1837 and elsewhere,1282 also
remain applicable. Those in the Wills Act are all subject to “the contrary intention”
appearing in the will. Some of these provisions apply in narrowly defined
circumstances. Others apply more broadly: for example, section 24 provides that, with
respect to property, wills shall be construed to speak and take effect as if they “have
been executed immediately before the death of the testator, unless a contrary
intention shall appear by the will”.
11.19 Interpretation involves determining the meaning of the words used by the testator in
the will. The focus is therefore on the will itself.
11.20 However, in order to interpret a document using the intentional approach, the court
must consider evidence of the circumstances in which it was created. 1283Evidence from
outside the will, called extrinsic evidence, can be admitted in certain situations.
11.21 Under the common law, circumstantial evidence can be admitted through the armchair
principle. The armchair principle is the longstanding idea that the court should place
itself in the testator’s “arm-chair, and consider the circumstances by which he was
surrounded when he made his will”. 1284The court may therefore admit circumstantial
evidence to ascertain all the persons and facts which the testator knew when they
made their will. Evidence admissible through this principle might include the testator’s
relationship with the beneficiaries in the will, 1285or evidence about what a testator called
a particular person. 1286For example, gifts to nephews and nieces have been interpreted
as including nephews and nieces by marriage rather than only those by blood, based
on the surrounding circumstances of the testator’s family.1287
11.22 The armchair principle does not allow evidence of the testator’s actual intentions to be
considered. Similarly, in relation to contracts, a court will not consider evidence of the
actual or subjective intentions of a party. To do so would focus the inquiry on what the
parties intended a document to say rather than on what the document did ultimately
say.1288
11.23 However, wills raise different considerations to contracts. A will is a unilateral
document. Moreover, a will does not come into effect until the testator’s death. There
is merit in considering what the testator intended to say, such as through notes made
by the testator when drafting their will, or records of conversations between the
testator and the will writer. Therefore, a special law of evidence applies in relation to
wills. The court can consider direct evidence of the testator’s intentions in certain
circumstances, under section 21 of the Administration of Justice Act 1982.1289
11.24 Section 21 provides that direct evidence of the testator’s intentions is admissible to
assist in the interpretation of a will in three circumstances.
(1) Section 21(1)(a) applies where the will (or any part of it) is meaningless. This
provision appears to be used most frequently to deal with blank spaces and
omissions, such as where a sum is unspecified,1290 or a beneficiary is not
identified. 1291It has also been used to address meaningless repetition.1292
(2) Section 21(1)(b) applies where the will (or any part of it) is ambiguous on its
face. The courts have interpreted this to apply where a provision is capable of
bearing more than one interpretation. For example, in a disposition of a
shareholding to two beneficiaries such that the “shareholding of both of them
[shall] amount to 26% of the issued share capital”, the word “both” was
ambiguous as to whether the beneficiaries’ combined shareholdings should
amount to 26%, or whether each of their shareholdings should amount to 26%.
This ambiguity enabled the court to admit direct evidence of the testator’s
intention and to interpret the will such that each of the beneficiaries were to
receive 26%.1293
(3) Section 21(1)(c) applies where the will (or any part of it) is ambiguous in the
light of the surrounding circumstances. The court can therefore consider the
circumstances or context of the will to determine if a provision is ambiguous.
For example, where a testator gave a gift to a person with whom he had no
known relationship and who had predeceased him, evidence was admitted as
to his actual intention. The testator, who had had no contact with his family, had
by his will left half of his estate to his sister “Doreen Hall” of a specified address.
The Doreen Hall who lived at that address was not the testator’s sister and had
no known relationship with him; meanwhile, the testator’s sister, by then known
as Doreen Anison, lived elsewhere. On that basis, the description of the
beneficiary gave rise to a latent ambiguity, so direct evidence of the testator’s
intention was admitted.1294
11.25 Direct evidence of the testator’s intention is only an aid to interpretation. Accordingly,
as with extrinsic evidence generally, the court cannot admit evidence of the testator’s
intentions to support an interpretation which is inconsistent with the wording of the will
itself.1295 The court also cannot rewrite the will to address a situation not dealt with in
the will. Nor can the court speculate about the testator’s intention when the admissible
evidence does not provide an answer.1296
11.26 Rectification is the process by which the court corrects mistakes in a will. As we noted
in the Consultation Paper, the question for the court is “what words did the testator
intend to use?” The court can consider the testator’s intentions and the context to
determine what the testator intended to say in their will, and to correct the testator’s
mistakes.1297
11.27 Under the common law, the court has limited powers to correct mistakes in a will.1298 It
includes the following powers:
(1) to remove from the will any word or phrase which was included by fraud or
without the testator’s knowledge and approval;1299
(2) to omit words which were included accidentally, if their omission would give
effect to the testator’s intentions;1300 and
(3) to read the will “as if certain words had been omitted, changed or inserted”
where the language of the will did not reflect the testator’s intentions, but only if
the court was certain (from the language of the will alone) which changes would
give effect to the testator’s intentions.1301
11.28 Section 20 of the Administration of Justice Act 1981 expanded the court’s power to
correct mistakes. It gives the court the power to rectify a will in two instances where a
will “fails to carry out the testator’s intentions”. For rectification to be possible under
section 20, the will must fail to carry out the testator’s intentions either 1) because of a
clerical error, or 2) because of a failure to understand the testator’s instructions.
(1) Under section 20(1)(a), the court can rectify a will if it is satisfied that the will
fails to carry out the testator’s intentions because of a clerical error. Following
Marley v Rawlings, “clerical error” is interpreted broadly to include “a mistake
arising out of office work of a relatively routine nature, such as preparing, filing,
sending, or organising the execution of, a document”.1302 Thus in Marley v
Rawlings itself, the Supreme Court found that there had been a clerical error
because the testator had signed the wrong mirror will (his wife’s). The courts
have permitted rectification for clerical error where the drafter omitted to include
a provision in the will which they intended to include,1303 and where the drafter
included, without considering its significance, a provision which was contrary to
the testator’s instructions.1304 Typographical errors and slips are also clerical
errors - for instance, where the drafter should have written “my one half share”
but instead wrote “one half of my share”.1305
(2) Under section 20(1)(b), the court can rectify a will if it is satisfied that the will
fails to carry out the testator’s intentions because of a failure to understand their
instructions. For this provision to apply, the testator must have engaged a third-
party to draft their will. For example, in one case, the court found that the
solicitor had misunderstood that the testator wanted to leave his entire farm to
his wife, rather than, as the testator had instructed, only the farmhouse and
specific parts of the land.1306
11.29 Crucially, the power to rectify a will does not apply in respect of what are called
drafting errors,1307 that is, errors caused by a “failure to appreciate the effect of the
words used”.1308 Accordingly, the court cannot rectify a will to correct
misunderstandings on the part of the testator or the will writer about the legal effect of
the words used or to correct incorrect drafting techniques.1309
11.30 In order to rectify a will under section 20, the court must determine three questions, as
explained in Re Segelman (Deceased) by Mr Justice Chadwick (as he then was):
First, what were the testator's intentions with regard to the dispositions in respect of
which rectification is sought. Secondly, whether the will is so expressed that it fails to
carry out those intentions. Thirdly, whether the will is expressed as it is in
consequence of either (a) a clerical error or (b) a failure on the part of someone to
whom the testator has given instructions in connection with his will to understand
those instructions.1310
11.31 Unlike in interpretation, there is no limit on the admissibility of evidence in a claim for
rectification. In order to consider a claim for rectification, the court’s first step is to
determine what the testator intended; it can then assess whether the will failed to
carry out that intention. All evidence of the testator’s intentions - including direct
extrinsic evidence such as the solicitor’s notes of the testator’s instructions - is
admissible in this assessment.1311
11.32 We explained in the Consultation Paper that the doctrines of interpretation and
rectification overlap. Interpretation is an unavoidable part of the process of
rectification. Arguably courts have also muddied the conceptual waters by correcting
mistakes by interpretation, potentially crowding out the doctrine of rectification. In
practice, the same result can sometimes be reached by either interpretation or
rectification, so litigants often plead them in the alternative.1312
11.33 We outlined the debate about which is the correct order: whether interpretation or
rectification should be conducted first. We thought that interpretation was a necessary
component of rectification, given that the court will first need to interpret the will to
determine whether an error has been made. However, we also recognised that
rectification is conceptually prior to interpretation: where there is an error, it can be
corrected, at which point the court must apply the principles of interpretation to
determine what the corrected document means.1313
11.34 Despite this debate, we explained in the Consultation Paper that we had not seen
evidence from practitioners that the order in which interpretation and rectification are
applied causes problems in practice.1314
11.35 These considerations led us to the provisional view that compelling courts to consider
rectification and interpretation in a particular order would likely cause more uncertainty
than it would resolve. We therefore provisionally proposed that the order should not be
prescribed,1315 and asked consultees whether they knew of problems in practice.1316
11.36 Our provisional proposal that the order the court addresses rectification and
interpretation should not be prescribed was supported by a very substantial majority of
the consultees who responded.1317
11.37 Many consultees thought that courts should be allowed the flexibility to determine the
order, on a case-by-case basis. Others commented that the order might depend on
the way the case is argued. Some referred to the relationship between the two
doctrines. For example, Lord Walker of Gestingthorpe 1318said that in most cases,
construction will come first:
but just as construction is an iterative process, so when construction and rectification
are both in issue, the court may have to go back and forth between them in its route
to the right answer.
The Society of Legal Scholars offered that the order was less important than
recognising the limits, and distinctiveness, of the two doctrines.
11.38 Conversely, two consultees thought that we, or legislation, could do more to provide
clarity on the point.
11.39 No consultees responding to our question as to whether problems arise in practice
were aware of cases in which the order of interpretation and rectification had created
problems.1319
11.40 We are not aware of any significant developments in relation to the issue of the order
courts should consider interpretation and rectification since the publication of the
Consultation Paper.
11.41 We agree with consultees that we should not make a recommendation prescribing the
order in which the court must consider interpretation and rectification.
11.42 Prescribing the order would limit the court’s flexibility to deal with cases pragmatically,
on a case-by-case basis, considering both the facts of the case and the way it is
argued. Additionally, it does not appear that the order the courts consider
interpretation and rectification is causing any issues in practice. In any event, there is
no consensus on what the prescribed order would be.
11.43 In the Consultation Paper, we explained that the language of the interpretative
provisions in the Wills Act 1837 - specifically sections 23 to 31 - was outdated. Noting
that other jurisdictions had enacted reforms to update similar provisions to those in
sections 23 to 29, 1320we provisionally proposed that they be updated and put in modern
and simple terms.1321 Although we thought that the provisions remained useful and
were unaware of any need to reform them substantively, 1322we asked a question to test
that view with consultees.1323
11.44 However, we thought that sections 30 and 31 merited different treatment. We
explained that we were unaware of reported cases applying these obscure provisions
and that we were unsure of what their practical use might be.1324 We therefore
provisionally proposed that sections 30 and 31 should be repealed.1325
11.45 A very substantial majority of the consultees responding agreed with our provisional
proposal to modernise and clarify the language of sections 23 to 29 while retaining
their substantive effect.1326
11.46 Some consultees argued generally in favour of modernisation, with a few commenting
that it would make the law more comprehensible and accessible.
11.47 Some consultees who agreed with the proposal urged caution, however. Consultees
warned that clarity should not be lost. They said that we must ensure that case law is
taken into account in reformulating the provisions so that, in their restated form, they
accurately reflect the current law, and that settled points do not need to be re-litigated.
Some consultees suggested that we should consult on the draft wording of the
restated provisions.
11.48 Those disagreeing seemed wary of reform. Pauline Davies1327 thought that any
changes would cause confusion. The Bar Council expressed the view that the wording
of these provisions “appears to have stood the test of time”, noting that they were
mostly applied by specialists and operated only rarely. Professor Roger Kerridge
argued that the rules of interpretation should not generally fall within our project but
should only be considered separately.
11.49 In response to our questions as to whether sections 23 or 29 were obsolete or
required substantive amendment,1328 some consultees explained that the provisions
were not obsolete. The Bar Council suggested that the provisions may no longer be
referred to -
because those sections have been in play for so long that the legal positions they
set out are thought now to be part of the common law, and it is forgotten that they
were introduced by statute in 1837.
11.50 The Bar Council therefore queried the impact of repealing them. It offered as an
example the repeal of section 28(2) of the Law of Property Act 1925: the Bar Council
said that it was thought to be of little current use, but its repeal by the Trusts of Land
and Appointment of Trustees Act 1996 restored the default, pre-1925 position. The
Chancery Bar Association also observed that repealing provisions can have
unforeseen consequences.
11.51 Several consultees, including Christopher Jessel1329 and the Chancery Bar Association,
offered explanations of the meaning and effect of various provisions in sections 23 to
29, to illustrate that they are not obsolete. In some cases, they suggested minor
modifications to address uncertainties in the law or arising from the obscure language
of the provisions.
11.52 For example, section 28 of the Wills Act provides that:
Where any real estate shall be devised to any person without any words of
limitation, such devise shall be construed to pass the fee simple, or other the whole
estate or interest which the testator had power to dispose of by will in such real
estate, unless a contrary intention shall appear by the will.
11.53 Christopher Jessel explained that section 28 remains necessary:
Before 1837 it was necessary in a disposition of real property to make the grant or
devise “to A and his heirs” in order to carry the fee simple and a limitation “to A”
without those words only gave a life estate.
Section 28 reversed that position for wills. Accordingly, if section 28 were repealed
rather than replaced, Christopher Jessel thought the common law could revive such
that a gift of real property without words of limitation would only pass a life interest.
11.54 Consultees also offered suggestions as to how some of the provisions could be
updated. For example, several consultees (including the Chancery Bar Association
and STEP) suggested that the distinction between realty and personalty (and devises
and bequests) be removed from the language of the Act.
11.55 The substantial majority of the consultees responding to our provisional proposal to
repeal section 30 of the Wills Act 1837 agreed.1330 Those in favour of repeal said that
they had not had any experience of using the section in practice, and some added
that they could not conceive of any possible situations in which it would apply. Dr
Brian Sloan1331 noted that section 30 was not included in the new edition of Borkowski’s
Law of Succession 1332(which he has authored).
11.56 However, a few consultees wondered if section 30 could be combined with section 28.
For example, Richard Wallington1333 thought that the provision arguably duplicates the
effect of section 28 and so would not be needed, but “in case it does not duplicate it,
the revised section 28 should expressly include devises to trustees or executors”.
11.57 Christopher Jessel provided a detailed explanation of the background and effect of
section 30. He also thought that it might be possible to repeal it, but only if section 28
were extended to cover gifts to trustees. He also explained that section 30 appears to
preserve the common law in relation to a right of presentation (also called an
advowson), 1334meaning that a gift of a right of presentation to trustees without words of
limitation will continue to pass only a limited interest, a determinable fee. Christopher
Jessel explained that this exception may have been maintained to “discourage the
devise of advowsons to bodies of trustees which supported what were seen as
extremist parties within the Church of England”, stating that in the early 19th century
groups were acquiring advowsons in order to appoint evangelical ministers. He noted
that transfers of advowsons usually now require the consent of the bishop to take
effect, and wondered whether the Church has views about whether this exception
continues to be necessary.
11.58 A substantial majority of the consultees who responded also supported repealing
section 31.1335 Some consultees again said they had no practical experience of the
section or could not imagine a situation in which it would apply. Paul Saunders1336
suggested that the section became redundant when it became impossible to create
new trusts of settled land.
11.59 Richard Wallington1337 again suggested that expanding section 28 to include devises to
trustees could allow section 31 to be repealed.
11.60 Christopher Jessel 1338explained the three situations of devises to trustees where
section 31 would apply:
(1) there is no individual with a life interest, or (2) an individual has a limited life
interest, such as an annuity charged on the property and there are surplus rents and
profits or (3) there is a life interest in the whole property but there are further
purposes beyond the life of the individual.
He explained that without section 31, the law in force in 1837 would appear to apply,
meaning that the trustees would take a limited legal estate. He explained that this
could cause uncertainty about the ownership if the trust takes many years to
complete. On the completion of the trust, there could be a gift over,1339 but the
beneficiary may be hard to trace, or there could be a reverter to the estate of the
testator, but the testator’s residue may already have been distributed and some of the
residuary beneficiaries may have died. Moreover, because of the operation of the
Trusts of Land and Appointment of Trustees Act 1996, the legal estate would be
retained by the executors in trust for the trustees, who would then hold an equitable
estate on sub-trust for the beneficiaries. Section 31 ensures that, even after the
purposes of the trust are completed, the trustees hold the fee simple for whoever
becomes entitled.
11.61 Our policy in relation to sections 23 to 29 is to keep the substantive law as it is. As
noted in Parry and Kerridge: The Law of Succession, these provisions “lay down the
sense which is prima facie to be given to words, or ... fill gaps if the testator has failed
to cover something in his will”. 1340They are therefore useful provisions.
11.62 As part of this project, we have produced a draft Bill for a new Wills Act. In order to
enact our recommendations, some of the provisions of the existing legislation are
substantively amended in the draft Bill. However, other provisions have not needed
substantive amendment, and these include 1341the provisions in sections 23 to 29.
11.63 In producing a draft Bill for a new Wills Act, we have restated and consolidated
sections 23 to 28 in a way that ensures that the substance of the law remains
unchanged but the law is stated in a clear, modern and accessible way. However, the
draft Bill repeals but does not replace section 29. Repealing section 29 will not change
the law in substance, because the purpose of section 29 has been exhausted by
changes to the law since the enactment of the Wills Act 1837. We explain the Bill’s
approach to these provisions in detail in paragraph 11.66 and following below.
11.64 Despite the majority of consultees agreeing with repealing sections 30 and 31, some
consultees, in particular Christopher Jessel, provided information suggesting that
these provisions are necessary to retain.
11.65 These responses have informed our detailed consideration of sections 30 and 31,
which has led us to conclude that they are necessary to retain to avoid the re-
emergence of two ancient common law rules of interpretation. We explain below how
we have restated these provisions in the draft Bill.
11.66 The draft Bill for a new Wills Act restates, in a consolidated and updated form, all of
sections 23 to 31 except for section 29.
11.67 We have concluded that the purpose of section 29 has been exhausted by other
changes in the law since it was enacted in the Wills Act 1837.
11.68 Before the Wills Act 1837 came into force, common phrases in wills such as dying
“without”, “without leaving” or “without having” issue “were construed to mean a failure
of issue at any future time”.1342 This meant that if the will made a gift to A, with a gift
over in default of issue, A received a fee tail, 1343rather than a fee simple as the testator
probably intended. 1344Shelford on Wills explains that wills with “the words ‘die without
issue,’ and other expressions of a similar import” were a “fruitful source of uncertainty
and litigation in the construction of wills” prior to the Wills Act 1837. 1345Accordingly, the
main purpose of section 29 was to abolish the rule of construction from the case law,
so as to prevent the court from interpreting a gift as creating a fee tail when the
testator most likely intended to give a larger estate, such as a fee simple. 1346In the
same way, section 29 also prevented a life estate from being enlarged by construction
into a fee tail.1347
11.69 Section 29 is no longer needed to prevent estates tail from being created in wills by
virtue of interpretation. Since the Trusts of Land and Appointment of Trustees Act
1996, new entailed interests cannot be created, and an attempt to do so will instead
be a declaration that the property is held on trust absolutely for the purported tenant in
tail. 1348We therefore think that abolishing section 29 cannot revive the common law,
because that common law position was contingent on it being possible to create a fee
tail or other entailed interest.
11.70 Section 29 was also intended to prevent these same types of gifts - gifts using the
words “without”, “without leaving” or “without having” issue - from being interpreted in
a way that contravened the rule against perpetuities.1349 This aspect of section 29 has
been made express in its restatement in some Australian jurisdictions.1350
11.71 In our view, it is unnecessary to retain a version of section 29 to deal with the rule
against perpetuities. Because of the modern approach to the interpretation of wills,
wording such as “failure of issue” will be construed in line with the testator’s intended
meaning, rather than there being a presumption that it should mean failure of issue at
any point in the future. Moreover, in interpreting conveyances, “the court leans in
favour of vesting” to save gifts from falling foul of the perpetuity rule where possible;1351
this approach also appears to have applied in relation to testamentary gifts even prior
to the enactment of section 29.1352 Accordingly, we do not think section 29 is necessary
to retain to prevent very specifically expressed gifts from failing due to the rule against
perpetuities.
11.72 Section 23 of the Wills Act 1837 provides that a gift in a will operates in relation to the
real or personal property the testator owns at their death despite a conveyance or
other act in relation to the property after the will was executed.
11.73 Theobald on Wills explains that, prior to section 23, if the testator’s interest in real
property was altered after making a gift of the property in their will, the alteration might
act to revoke the gift. This rule of equity applied even if the conveyance was only of
the legal estate; it meant that the testator’s remaining beneficial interest in the
property did not pass under the gift (although it did not apply to mortgages).1353
11.74 A consultee, Christopher Jessel, said that section 23 contributes to the law that a
specific gift of property is not adeemed where the property, after the will is made,
changes in form but not substance.1354 By abolishing the old rule that a subsequent
dealing with the property would revoke the gift, section 23 “leaves the court free to
construe the will so as to carry out the testator’s intention”.1355
11.75 We discuss ademption in detail in Chapter 12.
11.76 Section 23 continues to be relevant and necessary today. An example of the type of
circumstances in which it continues to be relevant are those in Re Fleming’s Will
Trusts. 1356In that case, the testator made a specific gift of a leasehold interest in
property. After making the will, the testator acquired the freehold. Section 23 (together
with the interpretation of the will) resulted in the beneficiary taking the freehold
interest.
11.77 In his consultation response, Christopher Jessel suggested that section 23 should be
extended to cover a “mere equity which falls short of a full equitable interest (as in
Inwards v Baker)”.1357 In Inwards v Baker, at his father’s encouragement, a son built a
bungalow on his father’s land, with both the son and father contributing to the
construction costs. The court determined that an equity had arisen, preventing the
trustee of the father’s will from possessing the land.
11.78 However, in Chapter 12 we explain that we do not think that there should be a general
exception to ademption so that the beneficiary of a specific gift receives any interest
the testator holds in the property at the time of their death. Such a general exception
would mean that when a testator had disposed of their ownership interest in gifted
property but retained a different sort of interest, such as a mortgage (in a sale and
mortgage back situation), the beneficiary of the gift would receive the other interest
(the mortgage). We think that extending section 23 to mere equities would act to
create a general exception to ademption in this way, so have not gone forward with
this idea.
11.79 Accordingly, we have sought in the draft Bill to restate section 23 so that the
substance of the law remains the same.
11.80 Paragraph 8 of Schedule 3 to the draft Bill, together with paragraph 1, restates the
substance of section 23. First, paragraph 1 of Schedule 3 provides the general rule,
which applies to the other interpretation provisions in the Bill, that the specific
interpretation rule is subject to the testator expressing the contrary intention in their
will. Paragraph 8 then provides that if the nature of the testator’s interest in the gifted
property changes after making the will, the disposition still has effect in relation to the
changed interest. However, paragraph 8 does not apply if the property itself, rather
than the testator’s interest in it, has changed in substance. Nor does it apply if the
property is no longer in the testator’s estate at all. This approach ensures that the
general rule of ademption continues to apply: a gift fails if, when the testator dies, the
testator no longer owns the gifted property or if the property has changed not just in
form but in substance.1358
11.81 Section 24 provides that, absent the will showing a contrary intention, references to
property in a will are to be interpreted as if the testator made the will immediately
before they died. Section 24 works together with section 3 of the Wills Act 1837 to
reverse the pre-1837 rule that a will spoke from its date in relation to the property
gifted in it. Prior to the 1837 Act, a will could only dispose of property the testator
owned at the time they made the will.1359
11.82 The date from which the will speaks in terms of the beneficiaries in it, or the objects of
the gifts, remains governed by the common law position: it is the date when the will
was made.1360
11.83 Section 24 is relevant to the doctrine of ademption, which we consider in Chapter 12.
11.84 As noted by some consultees, section 24 contains an important principle of
construction. The Chancery Bar Association explained that although the principle is
“often cited as though it were axiomatic”, the principle continues to rely on the
existence of section 24. It therefore must be retained.
11.85 The substance of section 24 is restated in paragraph 2 of Schedule 3 to the draft Bill.
Paragraph 2 is subject to the testator expressing the contrary intention in their will, in
accordance with paragraph 1.
11.86 Prior to the Wills Act 1837, real property the testator acquired after making their will or
real property which was the subject of a failed gift in the will would not fall into any
residuary disposition. 1361Although failed gifts of personal property would fall into the
residue, a failed gift of real property passed to the testator’s heir at law. 1362This rule
arose because of the policy that an heir at law could only be disinherited if the testator
intended to disinherit them. 1363Accordingly, the testator had to use very clear and plain
words to do so.1364
11.87 Section 25 means that real property subject to a failed gift or not otherwise disposed
of in the will (including property the testator acquired after making the will) falls into the
residue, and so is included in part of any gift of the residue. The result is that the same
rule applies to both real and personal property.1365
11.88 Paragraph 6 of Schedule 3 to the draft Bill restates the substance of section 25. To
improve clarity of the law, paragraph 6 is not limited to gifts of real property, unlike
section 25: paragraph 6 applies generally, to all types of property, real and personal.
11.89 Like section 25, 1366paragraph 6 applies to a general power of appointment but not to a
special or hybrid power of appointment. The testator is not treated as in effect the
owner of property over which they have a special or hybrid power of appointment;
accordingly, such powers must be validly and specifically exercised in order to be
governed by the disposition in the person’s will.1367
11.90 Like the other specific interpretation provisions in Schedule 4, paragraph 6 is subject
to the testator expressing a contrary intention in their will, in paragraph 1.
11.91 Paragraph 4 of Schedule 3 restates and consolidates sections 26, 28, 30 and 31 of
the Wills Act 1837.
11.92 Section 26 provides that a general gift of the testator’s land, such as by reference to a
location, will be interpreted to include the testator’s leasehold estates as well as any
freehold estates, absent a contrary intention appearing by their will. Theobald on Wills
suggests that this section might have been intended to abolish the rule established in
the 17th century case Rose v Bartlett1368 that:
a general devise of lands, tenements, and hereditaments did not carry leaseholds, if
there were any freeholds; on the other hand, if there were no freeholds, leaseholds
might pass.1369
11.93 As we note at paragraph 11.52 above, section 28 provides that gifts of real estate
which do not include words of limitation (which are also called words of inheritance)
will be interpreted to pass the fee simple or the whole estate or interest of which the
testator has the power to dispose. Under the common law, a gift of real property would
only pass a life estate unless it expressed an intention to transfer a fee simple or fee
tail; to pass a fee simple or fee tail, words of limitation needed to be used.1370 Section
28 of the Wills Act 1837 therefore addressed this issue for testamentary
dispositions.1371
11.94 Sections 30 and 31 are slightly more obscure. They both address gifts to trustees and
executors specifically, having the same basic effect in relation to these gifts that
section 28 has in relation to gifts to other people.
11.95 The general rule in relation to the construction of gifts in wills to trustees was that,
absent a contrary intention appearing from the will, the gift would pass to the trustees
the fee simple if the purpose of the trust required that they have this level of interest,
either because they needed to take an action which required ownership of the fee
(such as to sell it) or that they would need to have the property for an indefinite period
to fulfil the purposes of the trust.1372
11.96 An exception to this rule appears to have first arisen in 1593 in Cordal’s Case.1373 In
his will, the testator had devised land to his executors for the payment of his debts,
and, once the debts had been paid, to the testator’s brother for life, with the remainder
to his brother’s heirs in tail. The court determined that the will did not give the
executors a freehold but only a chattel interest (meaning a term of years or leasehold),
which determined when the profits should have paid the debts.1374
11.97 This is the rule that section 30 addresses, although making an exception for a gift of
an advowson to trustees (a point of history that Christopher Jessel explained in his
consultation response).
11.98 The courts then applied the rule from Cordal’s Case to cases of gifts in wills to
trustees, even if the wording of the gift was sufficient to give the trustees the fee
simple. 1375Section 31 addresses this rule.
11.99 Our view has been that the rules in sections 26, 28, 30 and 31 are necessary to retain,
to avoid the common law reviving on these points.
11.100 Paragraph 4 restates them all in a consolidated form. It seeks to do so in a simple
way which is understandable without any historical knowledge of these provisions. It
collapses them into a single rule, that a gift to any person - which includes a gift to a
person as a trustee or executor - has effect as a gift of the testator’s entire estate or
interest in the gifted property, subject to the testator expressing the contrary intention
in their will. Accordingly, for example, words of limitation will not be required for the
testator to pass their entire interest in real property, although words could be used to
limit the extent of the interest given, such as to create a life interest rather than
passing the fee simple.
11.101 Having discussed whether it is necessary to retain the exception in section 30 for
advowsons with the Chief Legal Adviser to the Archbishops’ Council and the General
Synod of the Church of England, the Reverend Alexander McGregor, we have not
carried it forward in paragraph 4.1376
11.102 Section 27 provides that a gift in general terms will operate to exercise a general
power of appointment that the testator had over the property which answers the
description in the will, subject to a contrary intention being expressed in the will.
11.103 Before the Wills Act 1837, to exercise a general power of appointment by will, the
testator was required to refer to the power or the property subject to the power.
Shelford on Wills explains that “it was firmly settled” that a general but unlimited gift of
property would not act to exercise any general power of appointment.1377
11.104 The early 20th century case Re Jacob explains the purpose of section 27:
It has been often said, and is now a platitude, that the object of the section was to
abolish the distinction between property and a general power over property,
because an ordinary man considers in the latter case that the property is his own.1378
11.105 Paragraph 3 of Schedule 3, together with paragraph 1 allowing the testator to
express the contrary intention, restates section 27.
11.106 In his consultation response, Richard Wallington suggested that the restated version
of section 27 should be extended to include estates in which the testator has an
entailed interest. This suggestion would allow a disposition of “all of my property” to
bar an entail.1379 In our view, it would expand the scope of section 176 of the Law of
Property Act 1925, which only permits a testator to bar an entail by will where the will
refers to the property that is entailed, the entailing instrument, or the testator’s entailed
interest. This would be a change in the way that a testator can bar an entail by will,
and one on which we have not consulted. Accordingly, we have not taken this
suggestion forward (in either the restatement of section 27 of the Wills Act 1837 or
section 176 of the Law of Property Act 1925).1380
11.107 We noted in the Consultation Paper that the intentional approach to interpretation
makes it more likely that wills will give effect to testators’ actual wishes; however, we
wondered whether any further specific interpretative provisions were necessary. We
gave two examples, not as suggestions, but as illustrations.1381
11.108 The first example we gave is the possible confusion that may arise from the terms
“devise” and “bequeath”, the former technically being a gift of real property, and the
latter of personal property. We noted that lay people might use these terms as
synonyms, with the possibility that a testator might not dispose of their entire estate if
using one or the other term. We noted that this point was specifically addressed in a
recommendation by the Australian National Committee for Uniform Succession Laws.
We thought it was possible that this problem was already adequately resolved in the
law of England and Wales by virtue of the intentional approach. But we thought the
example was illustrative of the type of situation in which the need for a specific
provision might arise.1382
11.109 The second example we gave concerns a change in the nature of a testator’s
shareholding which takes place between the testator making their will and dying. We
gave as one example where the company splits the shares, doubling the number of
shares the testator holds but maintaining their total value. Although this issue is
essentially one of ademption (a topic we discuss in Chapter 12), we noted that the
Uniform Probate Code in the United States includes a provision to deal with this
situation.1383
11.110 With these illustrations in mind, we asked consultees whether there was a need for
any new interpretative provisions.1384
11.111 Just over half of the consultees who responded said that there was no need for any
new interpretive provisions. A small minority 1385suggested that new interpretative
provisions might be useful.
11.112 The main argument made against introducing further provisions was that such
provisions would be unnecessary in the light of the intentional approach to
interpretation. Some consultees further argued that new provisions may create
uncertainty or confusion. The Chancery Bar Association argued that:
The law of interpretation of documents has been extensively reviewed since the
enactment of the 1837 Act. A great deal of guidance has been provided at appellate
level (including, on more than one occasion, the House of Lords/Supreme Court). It
is now accepted that the learning on bilateral commercial documents applies also to
wills. We consider that new statutory rules of construction would only sow further
confusion in this field. It would also be inconsistent with the modern and increasingly
purposive approach to construction.
Similarly, Dr Catrin Fflur Huws 1386cautioned that new interpretative provisions could
result in the law becoming too prescriptive about the testator’s intentions.
11.113 Lord Walker of Gestingthorpe thought that the scope of new provisions could be
difficult to define: referring to the issues we identified in the Consultation Paper, he
said neither was “sufficiently serious to merit a new interpretative provision, the scope
of which would be very difficult to define”.
11.114 In relation to the terms “devise” and “bequeath”, three consultees thought that a
provision could be helpful. For example, the Society of Will Writers and Estate
Planning Practitioners said it would be useful for testators making homemade wills.
However, four consultees specifically commented that such a provision was
unnecessary, believing that the intentional approach to interpretation resolves the
issue. For example, the Law Society thought that “the law is settled” on this point, and
the Bar Council said that “a bequest of residue would never be construed only to
dispose of personalty”.
11.115 Similarly, consultees had mixed views about a provision dealing with changes in
shareholdings. Some seemed to think that either an interpretive provision or an anti-
ademption provision would be useful to deal with this scenario, as well as in the
circumstance where a bank account’s name had changed. The Bar Council
specifically thought that “section 24 of the Wills Act 18371387 would probably override
the intentional approach here”. Hugh James1388 commented that as “it is often
necessary to look to case law in these matters”, it “would be preferable to have clear
interpretative provisions to assist in deciding whether or not gifts will adeem”.
However, a few other consultees disagreed with the need for an interpretative
provision to address this situation, thinking that the intentional approach, potentially
together with the ability to admit evidence in the case of a latent ambiguity under
section 21(1)(c) of the Administration of Justice Act 1982, would resolve any issues.
The Law Society repeated its belief “that the law is settled” in this case.
11.116 Some consultees made additional suggestions for new interpretative provisions.
(1) The Bar Council suggested that it would be useful if the meaning of
geographical or national terms could be “interpreted loosely, in particular where
otherwise there is no property which falls within the specific gift at the date of
the will or death”. It specifically noted that testators may inadvertently use terms
that exclude the Isle of Man or the Channel Islands.
(2) Sheila Campbell1389 thought that it would be useful to have interpretative
provisions about the beneficiary where a gift is made to an unincorporated club
or association.
(3) Sheila Campbell also suggested an interpretative provision addressing gifts
made to a religious official, to clarify whether the gift is intended to them
personally or to their church or religious group.
(4) Christopher Jessel suggested that it may be useful to introduce new interpretive
provisions to cover changes to the identity of the beneficiary since the gift was
made in the will. In particular, he suggested this might be necessary where the
gift is made to a body, whether charitable or not, or corporate or
unincorporated, and the body has been reconstituted or changed its name since
the will was made. He suggested that “the gift should take effect as one to the
merged or renamed body which has succeeded to the assets or functions of the
former body”.
(5) LawSkills Ltd said it might be useful to have a provision that accounts for
changes to tax bands after the will is drafted, in particular, whether gifts in the
amount of the nil rate band include the amount of any transferable nil rate band,
especially where the will was drafted before the transferable nil rate band was
introduced.
(6) Two consultees, STEP and Paul Saunders, 1390suggested guidance be provided
on the situation where a will includes inconsistent gifts of the same property.
(7) David Hinchliffe 1391said that section 33 of the Wills Act 1837 should be extended
to cover all beneficiaries, absent wording reflecting the contrary intention.
11.117 Alastair Brierley1392 also suggested that all interpretative provisions in the Wills Act
should apply absent a contrary intention, with the contrary intention not limited to
being expressed within the will itself.
11.118 In the context of wills law, the intentional or purposive approach has been adopted
relatively recently. Marley v Rawlings 1393was a decisive moment, but a recent one.
Accordingly, its effect in various situations is not yet fully clear. In the time since the
Consultation Paper, there has nevertheless been further case law, demonstrating that
the intentional approach is becoming embedded and illustrating how it operates.
11.119 For example, it is now clear that geographical terms will be interpreted in accordance
with the modern approach. Although at the time of the Consultation Paper there was
authority from the High Court on this point, 1394there is now authority from the Court of
Appeal. In Partington v Rossiter, the Court of Appeal considered the interpretation of a
will in which the testator bequeathed his “UK assets”. The testator had assets in both
the UK and Jersey but had not otherwise disposed of his assets in Jersey. In the light
of the surrounding circumstances, the will was therefore ambiguous under section
21(1)(c) of the Administration of Justice Act 1982, so direct evidence of the testator’s
intention was admissible. This evidence, together with the presumption against partial
intestacy, led the court to conclude that the testator intended “UK assets” to
encompass his assets in Jersey.1395
11.120 We are generally cautious about introducing new interpretative provisions. We think
there is weight in the view, expressed by the Chancery Bar Association and others,
that doing so could result in confusion rather than clarity. We think imposing rules
directing the court generally to interpret a word or clause in a particular way would
undermine the process of constructing the term in light of the will as a whole and the
admissible evidence. We agree that imposing new rules of construction would suggest
a more formalist approach, running contrary to the recent developments in favour of
the intentional approach.1396
11.121 Consequently, we do not think we should introduce interpretative provisions unless
such provisions are clearly required. Considering the suggestions of consultees, we
recommend only one new interpretation provision.
11.122 Although most consultees were not in favour of new interpretive provisions, those
specifically addressing the need for a provision in relation to the terms “devise” and
“bequeath” offered mixed views.
11.123 There is a principle that courts should interpret technical words to have their technical
meaning. 1397However, the weight given to this principle has reduced as the intentional
approach to interpretation has become predominant. Theobald on Wills observes that
the weight to be given to technical meanings depends on all the circumstances.1398
Considering the context of homemade wills, the cases with which we were principally
concerned in the Consultation Paper, Parry and Kerridge is of the view that this
principle would carry little weight. Instead, the authors consider that “the approach
should be to construe legal expressions to mean what the testator meant, not what a
lawyer would have meant”. 1399However, in cases where a will is professionally drafted,
the courts should assume that technical words are used in a technical sense.1400
11.124 The courts appear to interpret the terms “devise” and “bequeath” without reference to
their technical meanings in cases involving homemade wills. For example, in Guthrie v
Morel, the testator’s will used the term “bequeath” when disposing of all their real and
personal property - including four houses - but the High Court did not comment on
this usage.1401
11.125 The courts themselves also appear to use these terms liberally on occasion, without
reference to their technical meanings. For example, in Hawken v Jelbert, Recorder
Blohm KC used “bequest” in a non-technical sense by referring to the testator
bequeathing their house and land.1402
11.126 Accordingly, we think that the intentional approach already resolves any issue that
might arise from the terms “devise” and “bequest”. It would be unnecessary to include
any interpretive provision along these lines in a new Wills Act. Indeed, we agree with
those consultees who suggested that the new Wills Act itself should no longer
distinguish between real and personal property where it is unnecessary to do so: the
draft Bill does not make this distinction but refers to property generally (and refers to
“dispositions” of property). The distinction in the wills context between real and
personal property is a relic from the days before the 1837 Act when different rules
applied to the succession of different types of property. We therefore think that
recommending an interpretive provision in relation to the terms “devise” and
“bequeath” would be an unnecessary and perhaps confusing anachronism.
11.127 In the Consultation Paper, we included as an illustration of potential problems the
situation where the testator’s shareholding changes after they make their will. We
acknowledged that this problem is an issue of ademption; however, it is also an issue
of interpretation. It is necessary first to determine what is the subject matter of the gift,
using interpretation. Next is the question of whether the gift as interpreted adeems. If
the gift does not adeem, interpretation will again apply to determine the quantity of
shares that will pass to the beneficiary.1403
11.128 This demonstrates that interpretation and ademption are linked. Indeed, there is an
argument about the degree to which the rules of ademption are rules of interpretation
rather than rules of law.1404
11.129 Because the fundamental question that must be answered in this scenario is whether
or not the gift adeems, we consider it in Chapter 12, where we discuss ademption in
detail.
11.130 We do not recommend that an interpretative provision in relation to geographical or
national terms should be introduced. As we explain at paragraph 11.119 above, it is
now clear that the courts will use the intentional approach to interpret any such terms,
including using the armchair principle to consider circumstantial evidence about the
location of the testator’s assets and how the testator used the terms, to interpret the
will. If it is necessary to consider direct evidence of the testator’s intention, it seems
that the court will be able to admit it under section 21(1)(c) of the Administration of
Justice Act 1982, given that it is likely that the circumstances of the testator’s assets
will give rise to a latent ambiguity. We think that this approach, together with the
presumption against partial intestacy, is sufficient to address this concern.
11.131 Section 24 of the Wills Act 1837 provides that the will speaks from the date of the
testator’s death with respect to the subject matter of a gift, absent a contrary intention;
however, under the common law, the will speaks from its date with respect to the
object of the gift (that is, the beneficiary of the gift), again absent a contrary
intention.1405
11.132 We think that the regular rules of interpretation, and in particular the intentional
approach, adequately addresses any changes of the names of beneficiaries. The
general rule of construction that the will speaks from its date as to the beneficiaries
means that the courts will consider the evidence of who met the description at the
date of the will to ascertain the beneficiaries; that the person’s or organisation’s name
changed after this time should not prevent the court from identifying them.1406
11.133 Direct evidence of the testator’s intention might also be admissible under section 21
of the Administration of Justice Act 1982 where a beneficiary’s name has changed.
The courts have applied section 21 to admit evidence of the testator’s intention where
the testator made a gift to a charity which no longer existed at their death,1407 and
where the testator made a mistake in naming a company. 1408Under the armchair
principle, evidence is admissible to prove the existence of the testator’s relationship
with the potential beneficiaries.1409 Such evidence can constitute “surrounding
circumstances” under section 21(1)(c) and could disclose the names and identities of
possible beneficiaries at the date of the will. A discrepancy between the names and
identities of beneficiaries at the date of the will and their subsequent names and
identities could also be part of the “surrounding circumstances” of the will which show
that the will is ambiguous, allowing direct evidence of the testator’s intention to be
admitted.
11.134 However, there appears to be a lingering question as to whether “surrounding
circumstances” under section 21(1)(c) could include circumstances after the will was
made. The Court of Appeal in Partington v Rossiter said that “surrounding
circumstances” under section 21(1)(c) can include “anything that would be relevant to
the way in which a reasonable reader would understand the will (except evidence of
subjective intention)”. 1410However, the court noted that it is unclear whether
“surrounding circumstances” include the circumstances at the testator’s death as well
as the circumstances at the date the testator executed the will, but it was unnecessary
in that case for the court to resolve this question.1411
11.135 It may therefore be that evidence of a change in a beneficiary’s name, arising after
the will was made, cannot constitute “surrounding circumstances” under section
21(1)(c) which give rise to an ambiguity. However, while the Court of Appeal did not
resolve this issue, the High Court in Watson v National Children’s Home considered
the circumstances at the time of the testator’s death to find that there was an
ambiguity. In that case, a gift to an animal charity was contingent on the charity caring
for the testator’s pets, but the testator did not have any pets living at the time of his
death. This ambiguity allowed the court to admit direct evidence of the testator’s
intention under section 21(1)(c) to interpret the gift: a handwritten note by the testator
to his solicitor instructed that the charity should receive the gift so long as it cared for
any pets he might leave behind. 1412Therefore the charity was entitled to the gift.1413
11.136 Moreover, section 21 only needs to be relied upon where direct evidence of the
testator’s subjective intention is necessary. If circumstantial evidence under the
armchair principle can show the testator’s intention, for example, evidence of the
beneficiary’s name at the time of the will, the court would appear to be able to use the
intentional approach to interpret the gift as going to the beneficiary under their new
name, without resort to section 21.
11.137 We therefore do not think it is necessary to introduce a new interpretative provision to
address beneficiary name changes, as we think the intentional approach would
address this situation.
11.138 We do not recommend the introduction of any interpretive provisions in relation to
gifts to unincorporated associations.
11.139 One consultee 1414suggested that provision could be made so that a gift to
unincorporated clubs or associations will be treated as a gift to the members at the
date at the testator's death for the benefit of the club or unincorporated body, unless
there was a contrary intention in the will. The purpose of this suggestion is to address
the problems which arise from the fact that unincorporated associations are not legal
persons,1415 and so gifts to them are vulnerable to failure.
11.140 However, gifts to unincorporated associations do not fail if the courts can interpret the
gift in one of three ways, depending on the language used in the will.
(1) As a gift to the members of the unincorporated association at the time of the
testator’s death beneficially, either as joint tenants or tenants in common. Each
member can then claim their share of the gift. This interpretation is rare -
according to Theobald on Wills, the case Re Smith 1416is the only clear example
reported in England.1417 In that case, the testator made a residuary gift for “the
society or institution known as the Franciscan Friars of Clevendon in the county
of Somerset absolutely”; the court held that this was an absolute gift to the friars
in the institution at the time of the testator’s death.
(2) As a gift to the members of the unincorporated association at the time of the
testator’s death, subject to the members’ contractual rights and liabilities
towards each other as members of the unincorporated association.
Consequently, members cannot sever their share, and on each member’s
departure or death, their share accrues to the other funds which are the subject
of the contract. This interpretation is the most common; in Re Recher, the High
Court held that the courts should adopt this interpretation “in the absence of
words which purport to impose a trust”.1418
(3) As a gift to be held on trust for the purposes of the unincorporated association.
If these purposes are non-charitable, there is a risk that the gift will fail for non-
compliance with the perpetuity rule, the lack of a beneficiary, or uncertainty.1419
11.141 The terms of the gift or the rules of the unincorporated association may prevent the
court from interpreting the words in the will in any of these ways. For example, in Re
Grant, the court held that it was impossible to interpret a gift to the Labour Party’s
property committee in the testator’s constituency as a gift to the members of the
unincorporated association.1420 The gift was specified to be for the property committee,
not the members, and the rules of the constituency association subjected the
members to the control of a national body; the rules therefore prevented the members
from freely disposing of any property. The court was also unable to interpret the words
of the gift to create a trust. Consequently, the gift failed.
11.142 However, it does not appear that the consultee’s suggestion would prevent gifts
failing where the court is unable to interpret the gift in any of the ways considered
above. The suggested provision reflects the current law, whereby courts generally
interpret a gift to an unincorporated association as a gift to the members, subject to
their contract as members of the unincorporated association, unless the words in the
will suggest a contrary intention. The effectiveness of the gift would therefore continue
to be a question of interpretation for the courts, and cases like Re Grant could still
arise.
11.143 Accordingly, we do not think that a statutory provision would improve the law in this
situation.
11.144 As Christopher Jessel noted in his consultation response, the current law caters for
situations where a testator makes a gift to a charity in their will and, at the time of their
death, the charity has ceased to exist or merged with another charity. However, the
law does not make similar provision for gifts to non-charitable organisations. We have
therefore considered whether we should recommend the introduction of an interpretive
provision to address this situation.
11.145 The law already addresses situations where the testator has misnamed the
beneficiary, whether charitable or not. The court will use the intentional approach to
interpretation to determine who the testator intended.1421
11.146 Where a charity has ceased to exist between the testator making the will and their
death, it is possible to use the intentional approach and, if applicable, section 21 of the
Administration of Justice Act 1982, to ascertain what the testator intended by the gift
to the charity. If the testator only intended to benefit the particular charity mentioned,
the gift will lapse; but if the will discloses a general charitable intent, then the court can
apply the gift cy-pres.1422 Whether the testator intended to benefit the particular charity
or had general charitable intent is a question of interpretation.
11.147 Where a charity has merged with another charity and the merger has been
registered, section 311 of the Charities Act 2011 provides that a gift to the original
charity takes effect as a gift to the merged charity, unless the testator provided
otherwise or the gift is excluded.1423 A gift will be excluded if the original charity held
permanent endowment and the testator intended the gift to be held subject to the trust
on which the permanent endowment is held.1424 Where section 311 is inapplicable (for
example because the merger is unregistered), it will still be possible to try to interpret
the gift as one for the benefit of the new charity in order to avoid the gift lapsing.
11.148 But the current law does not cater for situations where the testator makes a gift to a
non-charitable organisation, such as a company or an unincorporated association like
a club, and that organisation then merges with another organisation or undergoes
reconstitution.
11.149 As there are no legislative provisions to address this scenario, courts might attempt
to resolve the issue through interpretation. If the testator has made such a gift and the
organisation has dissolved by the time of the testator’s death, the gift lapses.1425 If,
however, the organisation has merged with another organisation or undergone
reconstitution, the courts might be able to use the intentional approach to determine
what the testator intended.
11.150 However, there might not be evidence of the testator’s intention regarding any
successor organisation. The testator might not have contemplated the possibility of a
merger or other change to the organisation. It could be speculative to infer an intention
to benefit the successor organisation from evidence of the testator’s intent to benefit
its predecessor, as mergers and reconstitutions are significant changes, unlike mere
changes in name (which we discuss at paragraph 11.131 and following above).
11.151 Therefore, we agree with Christopher Jessel that there is a lacuna in the law.
Although testators may be more likely to make gifts to charitable organisations, in our
view this does not justify legislative provision being made for gifts to charitable
organisations but not for non-charitable organisations.
11.152 Christopher Jessel’s suggestion to resolve this issue was to provide that a gift in this
circumstance should go to the merged or reconstituted body. While we think it is likely
that a testator would intend their gift to go to the successor organisation rather than
fail through lapse, that will not invariably be the case. At the least, testators should be
able to provide otherwise in their wills. 1426Because the current interpretative provisions
allow for the contrary intention to be shown by the will, we recommend that the new
interpretative provision should make a similar allowance.
11.153 We therefore consider that there should be an interpretative provision in the new
Wills Act to the effect that, where the testator has made a gift to a non-charitable
body, which has merged with another or been reconstituted since the date of the will,
the gift should take effect as one to the successor body, unless a contrary intention
appears by the will.
11.154 We recommend that a new Wills Act should include an interpretative provision to
the effect that, where the testator has made a gift to a non-charitable body, which
since the date of the will has merged with another or been reconstituted, the gift
should take effect as one to the successor body, unless a contrary intention appears
by the will.
11.155 Recommendation 25 is implemented in the draft Bill in paragraph 18 of Schedule 3. It
prevents a gift to a non-charitable body from lapsing where its activities, properties
and liabilities have been transferred to a successor body. The original body must be a
non-charitable body, but the successor may be charitable or non-charitable, as in both
situations the provision preventing lapse in the Charities Act 2011 does not apply.
11.156 The circumstances in which paragraph 18 can apply to save a gift from lapse are
derived from the charities context.1427 As outlined in subparagraph (2), before ceasing
to exist, the original body must have transferred all of its property, including its
liabilities, to the successor body. The successor body must carry on the same or
similar activities as the original body, and the transfer of property must have been for
purposes connected with those activities.
11.157 Paragraph 18 will apply to bodies including corporate bodies1428 and unincorporated
associations (in the latter case, presuming that a beneficiary of the gift can be
identified as we discuss at paragraph 11.140 above). It will not apply to non-charitable
trusts, which we think raise separate issues and should be addressed under trusts
law.
11.158 We do not recommend any other interpretative provisions.
11.159 In the case of religious ministers or other officials, we do not think it would be
appropriate to presume that gifts to them are made other than as gifts to them in their
personal capacity. The general rule is that gifts to office holders are interpreted as
gifts to the individual personally, absent the contrary intention being shown. 1429We
think interpreting the will as a whole, using the intentional approach, is the best way to
ascertain whether the gift is to the individual or to the group they represent. We also
think treating religious officials differently to other persons or types of office holders
would be difficult to justify.
11.160 We also do not think that we should make a recommendation to extend the scope of
section 33 to all beneficiaries. A general rule in wills law is that, where a beneficiary
predeceases the testator, the gift to them lapses. Section 33 provides an exception to
the doctrine of lapse for gifts to the testator’s children or other direct descendants. If
the testator’s child 1430predeceases the testator, but they themselves had a child who is
alive at the time of the testator’s death, any gift to the child will instead go to the
grandchild or grandchildren, by degree and in equal shares, unless the will shows a
contrary intention. 1431We do not think it would be appropriate to extend this exception
to all beneficiaries. It would be a significant change in policy on which we did not
directly consult. We also do not think it would necessarily be justifiable. Based on
social ideas of inheritance, it might be expected that a person, if their child
predeceases them, would want their grandchild to inherit that child’s share. But we do
not think that expectation applies to other relationships: so when someone wants to
benefit a friend, confidante or carer in their will, we do not think it could be assumed
that, if that person predeceased the testator, the testator would want the gift to go to
the beneficiary’s children.
11.161 We also think that the intentional approach is the best method for resolving
ambiguities where a will includes inconsistent gifts of the same property. This situation
would appear to fall squarely within section 21(1)(b) of the Administration of Justice
Act 1982 - a patent ambiguity, on the face of the will - and so direct evidence of the
testator’s intention would be admissible to interpret the will.
11.162 We similarly think that the intentional approach should be used to interpret any gifts
whose sum is to be determined by the remaining nil rate band. While precedents may
be used in relation to drafting these gifts, and the law governing inheritance tax has
changed and may change again, we nevertheless think that the intentional approach,
considering the will as a whole, is the best way to construe the amount of these gifts.
11.163 Finally, one consultee suggested that all interpretative provisions in the Wills Act
should apply absent a contrary intention, with the contrary intention not limited to
being found in the will itself. This is the approach used in interpretive provisions which
are found outside of the Wills Act 1837.1432 Conversely, the existing interpretative
provisions in the Wills Act 1837 are subject to the contrary intention being shown by
the will.
11.164 We do not think this is necessary. We think that the requirement that the will itself
expresses the contrary intention does not prevent the regular rules of interpretation
from determining what the will says. Whether the contrary intention is expressed in the
will should be ascertained based on the intentional approach and in the light of the
admissible extrinsic evidence, including direct evidence where there is an ambiguity or
the text is meaningless.1433 Accordingly, construction of the will works together with the
requirement that a “contrary intention shall appear by the will” so that it means
“contrary intention shall appear by the will as properly interpreted”.
11.165 We think this is the right approach: interpretation should be focused on the words
used in the will itself. Allowing an intention shown outside the will divorced from the
words used in the will itself, and without reference to the general rules governing the
interpretation of wills, would appear to stretch the meaning of interpretation, including
into the realm of rectification.
11.166 As we explain at paragraphs 11.27 to 11.29 above, the scope of rectification is
limited in the law of wills. Under section 20 of the Administration of Justice Act 1982,
rectification is only available where a will “fails to carry out the testator’s intentions in
consequence (a) of a clerical error; or (b) of a failure to understand [their] instructions”.
11.167 In the Consultation Paper we outlined the argument that the doctrine of rectification in
wills law is drawn too narrowly. Rectification as it applies to wills under section 20 is
narrower than the equitable doctrine of rectification, which applies to other documents:
in equity, rectification may operate “not only when the parties intend to use different
words but also when they mistakenly thought their words bore a different meaning”.1434
Other jurisdictions have not limited rectification of wills in the same way that we have.
For example, in South Australia, the court may order a will to be rectified if it is
satisfied that the “will does not accurately reflect the testamentary intentions of a
deceased person”.1435
11.168 However, we also noted arguments that pointed away from expanding the doctrine of
rectification. We said that we were concerned how broadening the doctrine could
interact with claims of negligence: if a will fails to have the effect the testator intended,
it may be because a practitioner has been negligent in drafting the will. We thought
that the appropriate action in those cases appeared to be a claim in negligence. We
also thought that reforming rectification might focus on the effect the testator desired,
rather than the wording they desired. We thought that using rectification as a means to
protect testators against unwise estate planning decisions was unwarranted as a
matter of principle.1436
11.169 Because we were unconvinced of the need for reform to the doctrine of rectification,
we asked consultees an open question. We asked whether they thought the scope of
rectification should be expanded. If they thought it should be, we asked what problem
the expanded scope would address and how that problem is inadequately addressed
by the current law.1437
11.170 A majority of the consultees who responded were opposed to expanding the doctrine
of rectification, with just over a quarter supporting expansion.1438
11.171 Consultees opposed to expanding the doctrine of rectification generally argued that it
was unnecessary. They identified three reasons it would be unnecessary: because of
the possibility that a negligence claim could instead be brought (where a will has been
professionally drafted), because of the court’s ability to interpret the will in accordance
with the testator’s intentions, and because of our provisional proposal to introduce a
dispensing power. For example, the Society of Legal Scholars said:
The need for any further expansion in the scope of rectification must necessarily be
tempered by the interaction between rectification, interpretation and dispensing
powers. Even under the more generous Marley1439 approach, there are numerous
errors which cannot be corrected by rectification and could only be addressed by a
dispensing power: two testators signing each other’s wills is one thing; a testator’s
failure to sign the will at all could not be rectified, for example. The introduction of
dispensing powers or other potentially wide-ranging relaxations proposed by the
Commission in the Consultation would also have an effect on arguments for a
broader doctrine of rectification: it would be more difficult to justify offering yet further
indulgence to correct mistakes through rectification beyond the present
circumstances. Nor should reforms challenge the important general expectation that
the will should mean what it says.
11.172 STEP argued that while it could understand wanting to expand the doctrine of
rectification to deserving cases which currently fall outside its ambit, for the benefit of
certainty the significant “grey” area of conflicting cases should instead be looked at “to
better define the circumstances in which the doctrine should currently apply”.
11.173 Professor D G Barnsley agreed with the arguments put forward in the Consultation
Paper regarding negligence and estate planning. The Society of Legal Scholars also
agreed that “the doctrine of rectification should not be a means to protect testators
from unwise estate planning decisions”. Dr Catrin Fflur Huws and Casey O’Hara1440
thought that expanding the law could lead to wills being rewritten, risking unwarranted
litigation by disappointed family members or would-be beneficiaries.
11.174 Some consultees appeared to think that the law was already too broad in its
consideration of the testator’s intentions, specifically expressing concerns about the
decision in Marley v Rawlings.1441
11.175 Those in favour of expanding the doctrine offered a number of arguments.
11.176 Some consultees generally argued in favour of rectification being permitted in order
for the will to reflect the testator’s intentions, where the testator’s intentions were clear.
For example, the Yorkshire Union of Law Societies was in favour of changes which
continue the trend of upholding the testator’s intentions, including by creating a
dispensing power and by “allowing rectification where there is evidence that shows the
testator’s true intentions”. The Bar Council also argued forcefully for widening the
scope of rectification:
We regard this as a most important change that needs to be effected to the law of
wills, which will have the capacity to right more wrongs than any other proposal
(apart from the power to dispense with formalities). The Law Commission would be
losing an excellent opportunity, if it did not expand the law of rectification now.
Similarly, Dr Brian Sloan referred us to his text Borkowski’s Law of Succession, where
he comments on the omission of drafting errors from the scope of section 20 of the
Administration of Justice Act 1982:
Misunderstanding the effect of the words used is perhaps the most likely reason why
rectification might be needed, so it is all the more surprising that it was omitted from
s 20.1442
11.177 Some consultees explained that the distinctions having to be drawn between different
types of failures under section 20 were arbitrary. The Bar Council said that, with the
meaning of “clerical” stretched as far as possible by the courts, in its experience “it
can be very difficult to distinguish between clerical and professional errors”; it
summarised that “it is an unnecessary, arbitrary and often unclear distinction”. Withers
LLP 1443noted that both types of failures could be cases of professional negligence, but
only one would be rectifiable:
As matters stand, a professional's inadvertent drafting error (which is professional
negligence) may be rectified, but a professional's deliberate yet erroneous drafting
(again professional negligence) is not capable of rectification.
11.178 Consultees in favour of expansion often thought that the current law resulted in unfair
outcomes. A number of consultees referred to the case of Kell v Jones1444 as an
example. For example, the Chancery Bar Association argued that:
an expanded jurisdiction would eliminate the unfairness highlighted in cases such as
Kell v Jones [2013] WTLR 507, where rectification was refused on the grounds that
the mistake in recording the testator’s intentions was not, properly speaking, the
consequence of a clerical error or a failure by the draftsman to understand the
testator’s instructions. The limiting effect of s 20 AJA 1982 as it applied in that case
has been the subject of convincing criticism (K Shannon, “Reluctance and regret
over will rectification”, Solicitor’s Journal, 1 Feb 2013). In the working group’s
experience, Kell v Jones was not an exceptional case. Unfortunately, it is not
unusual for mistakes in wills to fall outside the scope of s 20 as currently framed. We
see absolutely no reason why the law should continue to tolerate this lacuna, which
(though it may have a historical explanation) appears now to be anomalous and
unjustified.
11.179 The Charity Law Association Working Party Response argued that “wills can
commonly refer to a different charity to that which was actually intended”; expanding
rectification could make these errors easier to correct. The Bar Council also argued
that Walker v Geo H Medlicott1445 is another example of the shortcomings of section
20.
11.180 In scenarios where rectification is not available, some consultees thought that a claim
in negligence would not always produce a satisfactory result. They argued that
negligence cases result in a windfall to the unintended beneficiary. As explained by
Anthony Collins Solicitors LLP, a negligence claim where rectification is unavailable
means that “two (or more) people [are] effectively inheriting (one through the estate
and one through a compensation award) where there was only one estate to inherit
from”. David Halpern KC 1446set out the argument clearly:
It is unfair to transfer the entire cost of compensating the disappointed beneficiary
onto the negligent solicitor. I accept that, if one had a binary choice between the
negligent solicitor and the disappointed beneficiary, it is right that the solicitor should
compensate the beneficiary. But that ignores the fact that there will always be a third
party involved, viz the overpaid beneficiary. As between the negligent solicitor and
the overpaid beneficiary, why should the overpaid beneficiary retain a windfall which
the testator never intended him to have? Surely the equitable solution is that the
disappointed beneficiary’s primary remedy should be rectification in any case where
“the will does not accurately reflect the testamentary intentions of a deceased
person” (unless there is a defence such as change of position), and that the claim
against the solicitor should be limited to the irrecoverable costs of rectification (as
suggested by the Court of Appeal in Walker v Geo H Medlicott1447).
11.181 Similarly, the Chancery Bar Association thought that it would be more principled to
bring a claim for rectification rather than negligence, also noting that the negligent
solicitor should be required to pay for the costs of the rectification claim:
While it is perfectly correct that a mistake in a will may give rise to a claim for
damages against the negligent draftsman, we do not see any reason in principle
why the draftsman should incur liability (or the disappointed beneficiaries be forced
to resort to hostile litigation against him) if the mistake can readily be undone by
rectification. We believe the proper response to such mistakes is for the parties
affected to sue for rectification and for the negligent draftsman to volunteer to pay
(or, if necessary, be sued for) the wasted costs. We note that parties are already
expected to adopt this approach lest they fail to mitigate their losses: Walker v Geo
H Medlicott. We also think that corrective action of this kind is preferable on policy
grounds to the “compensation culture” of White v Jones1448 claims, which result in an
effective doubling of the estate at the expense of solicitors’ insurers.
Hugh James agreed that “there is no reason why the professional who has negligently
drafted the will could not, say, indemnify the parties for the costs of the rectification
action”.
11.182 Some consultees also noted that negligence will not be available in every case.
David Halpern KC1449 said examples could include where the testator does not seek a
solicitor’s advice in drafting their will or where the intended beneficiary’s claim
exceeds the solicitor’s insurance. He asked:
Why should the disappointed beneficiary’s remedy be dependent on whether there
happens to be an insurance policy which will respond satisfactorily?
11.183 Consultees also argued that rectification claims were quicker and less expensive
than negligence claims. For example, LawSkills Ltd (although not clearly in favour of
reform) explained that “it may be cheaper to pursue a claim for rectification than a long
drawn-out battle over negligence where professional indemnity insurers would be
reluctant to set a precedent”. Hugh James similarly noted that negligence claims “are
by their very nature costly and lengthy and give rise to significant insurance premium
increases”. Which? also made the point that in a negligence claim, the drafter would
likely take an adversarial approach, rather than a collaborative approach to establish
the correct result:
No rational consumer would think that the solution to their problem is to sue a
solicitor and no one working in the consumer interest could seriously advocate suing
a solicitor in negligence as a preferable outcome to that same lawyer
enthusiastically pursuing the solution rather than being put in the position of having
to deny liability and argue that the will was correct at the direction of his insurers.
11.184 Several consultees (including the Chancery Bar Association and Richard
Wallington1450) thought that the jurisdiction to rectify wills should be expanded to mirror
the jurisdiction in relation to unilateral lifetime documents. The Chancery Bar
Association and the Bar Council also argued that expanding the doctrine would not
risk unwarranted claims.
11.185 Several consultees also argued that expanding the jurisdiction for rectification in
relation to wills would not permit wills to be re-written to achieve the effect desired by
the testator rather than the wording desired by the testator. In relation to tax, the
Chancery Bar Association made the point that the current equitable doctrine of
rectification does not allow claims purely for tax planning purposes, unless it was the
clear intention of the testator to achieve a particular purpose. The Chancery Bar
Association and the Bar Council moreover noted that posthumous estate planning is
already permitted by way of deeds of variation. The Chancery Bar Association
explained:
Rectification of voluntary inter vivos1451 documents is a jealously guarded remedy. By
its nature it will not usually assist where the mistake in question relates purely to tax
consequences if the instrument is in all other respects consistent with the disponor’s
intentions. But where a disponor’s specific intention was to obtain tax advantages
which the inter vivos document then fails to secure, rectification may be available:
see, eg, A v D.187 ...
The Commission considers that, under an expanded jurisdiction, “rectification claims
might focus on the effect desired by the testator rather than the wording desired by
the testator.” We respectfully suggest that this concern is unfounded. It is clear from
cases such as Allnutt v Wilding1452 and Racal Group Services Ltd v Ashmore1453 that
court’s equitable jurisdiction to rectify inter vivos instruments (discussed above)
permits no such thing. Any expanded jurisdiction to rectify wills need be no wider
than the equitable jurisdiction as described in those cases.
11.186 The Bar Council similarly said:
Rectification always is used to correct the wording of a document so it corresponds
with the intention of the party or parties as to what ought to have been in the
document. It is not used to make a different document, which the party or parties
would have preferred. The law reports abound with instances where the court will
not give common law rectification of an estate-planning document such as a
settlement, which would bring about the result the party or parties wished, but did
not actually intend: see eg Allnutt v Wilding. 1454There is absolutely no reason to
suppose the courts would approach wills any differently.
11.187 Richard Wallington also argued that “Re Butlin type rectification” 1455does not create a
general jurisdiction to go back to change the substance of what was agreed but -
operates only where there was a specific intention behind particular wording which
that wording does not give effect to. It is not a general jurisdiction to amend
documents to produce something that is more convenient from a tax or other point of
view.
11.188 Separately, two consultees raised an issue with the six-month time limit for making
an application for rectification.1456 The Chancery Bar Association said it should be
repealed with “the usual equitable defences” applying instead, or, at the least, the time
limit should be extended. Richard Wallington also noted that the limit can create
problems where rectification is argued in the alternative to interpretation.
11.189 There continues to be case law applying section 20 of the Administration of Justice
Act 1982 in actions for rectification. We are not aware of specific developments in
relation to the issues that we raised in the Consultation Paper, or that consultees
raised in their responses to it. For example, “clerical error” continues to be given a
broad meaning. For instance, in Barrett v Hammond a solicitor did not “apply his mind”
to the task of drafting the codicil, such that he failed to notice a counting error in
relation to the number of parts into which the residuary estate had been split, meaning
that they were not all disposed of. This mistake was held to be a clerical error that
could be rectified. 1457In Waite v Skilton, the inclusion of a clause from the firm’s
precedent contrary to the testator’s instructions was also held to be a clerical error.1458
11.190 It is possible for some drafting errors - which cannot be rectified under section 20 -
to instead be remedied through the current law on interpretation. The intentional
approach to interpretation alone may be sufficient, or the court may be able to refer to
direct evidence of the testator’s intentions under section 21 of the Administration of
Justice Act 1982 if the wording of the will is meaningless, or ambiguous either on its
face or in the light of the surrounding circumstances.
11.191 For example, in Reading v Reading1459 Mrs Justice Asplin (as she then was) used the
intentional approach to interpret “issue” as including the testator’s stepchildren, having
regard to his family dynamic, a letter of wishes and the fact that he and his wife (the
mother of his stepchildren) had executed mirror wills. Mrs Justice Asplin considered
that, even if she was wrong about this approach to the interpretation of “issue”, the
term would be ambiguous in the light of surrounding circumstances such that direct
evidence of the testator’s intention would be admissible under section 21(1)(c). This
evidence demonstrated that the testator had intended “issue” to include his
stepchildren.
11.192 However, we think that it is possible that some drafting errors will not be able to be
resolved through interpretation or rectification. Some consultees argued that Kell v
Jones 1460was such a case. In Kell v Jones, the testator’s will included a clause which
provided for the residue of her estate to be distributed equally among such of the
beneficiaries, mentioned in a separate clause, “as shall survive me”. The separate
clause included 15 of the testator’s family members and four charities. The evidence
from the testator’s solicitor was that it was the testator’s intention, and her instructions,
that the residue should be split equally between her family members, not the charities.
Other evidence, including handwritten notes by the testator, supported the solicitor’s
recollection, as did the reference in the clause itself to beneficiaries surviving Mrs
Pittaway, the testator.
11.193 The court held that the will failed to carry out the testator’s intentions, as the
reference to the beneficiaries “as shall survive me” did not preclude the charities from
sharing in the residue. However, this was not a case where the solicitor had failed to
understand the testator’s instructions - the solicitor’s evidence on the testator’s
instructions was clear, and he believed that the will as drafted gave effect to her
instructions. Neither was this a case of clerical error. The solicitor had carefully
considered the words used in the will and incorrectly believed that they would fulfil the
testator’s intentions. This was a drafting error: the solicitor had deliberately included
“as shall survive me”, mistakenly believing that these words would realise the
testator’s intentions. Accordingly, the court had no power to rectify the will under
section 20.1461 This led to a windfall to the four charities of approximately £100,000.
11.194 The Law Reform Committee, in its Nineteenth Report in 1973, recommended the
introduction of a power to rectify wills in the case where the will fails to fulfil the
testator’s intentions due to a clerical error and a failure to understand their intentions.
Its recommendations led to the enactment of section 20 of the Administration of
Justice Act 1982. The Committee considered, but did not recommend, allowing
rectification in the case of drafting errors, where the testator or drafter failed to
understand the effect of the words they used. The Committee concluded that this
category of case fell within the remit of interpretation, and to allow rectification in these
cases would “pass into the wider realm of the testator’s purpose”.1462
11.195 We tend to agree that interpretation will often be able to resolve issues that arise
essentially due to drafting errors. 1463However, we also think that a case could arise
where there is simply no room for the will to be interpreted in a way that reflects the
testator’s intentions, and the failure was due to a drafting error, not a clerical error or a
misunderstanding of the testator’s instructions. As explained by Mr Justice Nicholls
(as he then was) in Re Williams:
If, however liberal may be the approach of the court, the meaning is one which the
word or phrase cannot bear, I do not see how in carrying out a process of
construction — or interpretation, to use the word employed in section 21 — the court
can declare that meaning to be the meaning of the word or phrase. Such a
conclusion, varying or contradicting the language used, would amount to re-writing
part of the will, and that is a result to be achieved, if at all, under the rectification
provisions in section 20.1464
11.196 We also agree with consultees that there is uncertainty about the boundaries
between a clerical error on the one hand, and a drafting error on the other.
11.197 Some of this uncertainty may be from inconsistent interpretations by the courts. For
example, in Reading v Reading, as explain in paragraph 11.191 above, Mrs Justice
Asplin interpreted “issue” to include the testator’s stepchildren. She then considered
rectification and concluded - obiter - that this case did not involve a clerical error,
because the inclusion of the term “issue” was an error by the solicitor in “carrying out
his professional duty and judgement” in drafting the will, and therefore a matter of
“specialist ... expertise”.1465
11.198 This interpretation of clerical error appears to elevate the caveat by Lord Neuberger
in Marley v Rawlings, that a clerical error may not extend to an activity which involves
specialist expertise,1466 into a bright-line exclusion based on the nature of the mistake.
Reading v Reading suggests that if the mistake is made by a solicitor while exercising
their professional judgement, it cannot be rectified.1467
11.199 Despite some uncertainty, we do not believe that we should recommend that “clerical
error” be defined. We would be wary about interfering with the development of case
law in light of Marley v Rawlings. Moreover, we think this would not address the
fundamental problem. We think that there is a degree of inherent uncertainty due to
the distinctions that must be drawn between clerical errors and drafting errors.
11.200 As Professor Roger Kerridge explains, whether a mistake is a clerical or drafting
error does not solely turn on the nature of the mistake; it also depends on the mental
state of the drafter. Therefore, if the solicitor in Reading v Reading had copied “issue”
from a precedent and not noticed that the precedent used this term, the inclusion of
“issue” could have been a clerical error. However, if the solicitor had knowingly used
the term “issue”, believing incorrectly that the ordinary meaning of this term included
the testator’s stepchildren, this would have been a drafting error.1468
11.201 Dr Brian Sloan, referring to his textbook Borkowski’s Law of Succession, explained
that the case Re Horrocks (Deceased) 1469provides another example of a mistake
which might or might not be rectifiable under section 20. There, the testator left the
residue of her estate on trust for “charitable or benevolent” objects. The gift was at risk
of failing for uncertainty because it was not exclusively charitable. Under section 20,
the will could have been rectified if the inclusion of “or” rather than “and” was a clerical
error, meaning “or” was used accidentally or unthinkingly. It could not be rectified if
“or” was used due to the solicitor’s failure to appreciate the effect the “or” would
have.1470
11.202 There was also confusion about the line between clerical and drafting errors in
Brooke v Purton. 1471In this case, the solicitors used an inappropriate precedent when
drafting the testator’s will: the testator had intended to set up a discretionary trust of
his business assets in his will, but the precedent precluded any business assets from
being included within the trust. David Donaldson KC, sitting as a Deputy High Court
Judge, resolved the dispute through interpretation, but then commented, obiter, that
there had been a clerical error by the solicitors and so the will could also be rectified.
Professor Roger Kerridge argues that this was in fact a drafting error and so should
not have been rectifiable: the solicitor had knowingly used the precedent, incorrectly
believing that it had the testator’s intended effect.1472
11.203 Kevin Shannon, in a 2013 article, also argued that the inability to rectify drafting
errors may lead to unprincipled distinctions, with the availability of rectification in some
cases turning on the mental state of the person who drafts the will, rather than the
testator’s intentions or their instructions.1473 According to Elizabeth Drummond, the
result is that “whether the testator’s wishes are carried out ... can depend on whether
the testator chose a careless drafter or a thoughtful one”.1474
11.204 In Marley v Rawlings, Lord Neuberger observed that “the law would be somewhat
incoherent if subtle distinctions led to very different results in cases where the ultimate
nature of the mistake is the same”. 1475Yet the current inability to rectify drafting errors
seems to result in a similar incoherence.
11.205 We made two arguments in the Consultation Paper in favour of retaining the current
scope of rectification. First, we thought that where a will does not reflect the testator’s
intentions as a result of negligence, a negligence action against the drafter would be a
more appropriate remedy than a rectification claim. Second, we were concerned that a
wider doctrine of rectification would open the floodgates to unwarranted claims which
were concerned with whether the will had the effect which the testator intended, rather
than the words which the testator intended.1476
11.206 Several consultees disagreed that negligence was a more appropriate remedy. We
think that their arguments are persuasive. We agree that the outcome of a negligence
case - resulting in the payment of two legacies at the expense of the solicitor (and
their insurers, and others’ insurance premiums) - is arguably unjust, and moreover
unlikely to accomplish the testator’s intentions. We also think an approach which
encourages the cooperation of the solicitor, rather than a protracted dispute with the
solicitor or their insurers, is a more efficient way of resolving the issue.
11.207 Moreover, as Kevin Shannon argued, the current law may provide a perverse
incentive to drafters.1477 If a drafter fails to apply their mind to their drafting and makes
a mistake, this may be a clerical error for which rectification is available. The
availability of rectification may also reduce the likelihood of the drafter facing a
negligence claim, particularly where the drafter covers the cost of the rectification
claim.1478 By contrast, if a drafter concentrates on their drafting and includes a word or
phrase, mistakenly thinking that their drafting is fulfilling the testator’s intentions,
rectification is unavailable, and a negligence claim may be more likely. The law
therefore could be seen as encouraging drafters to pay less attention when drafting.
Arguably it may also potentially encourage drafters to be dishonest and claim that they
did not notice their mistake, so that the error can be categorised as a clerical error,
enabling rectification and avoiding a claim in negligence.1479
11.208 Some consultees also thought that our concern about the floodgates opening to
unwarranted rectification claims was misguided. On reflection, we think they are right:
although it is likely that litigation will increase due to the availability of rectification
based on a new ground, we do not think the change will encourage unmeritorious
claims.
11.209 First, rectification under section 20 of the Administration of Justice Act 1982 is a
discretionary remedy. As explained by Lord Neuberger in Marley v Rawlings, the court
can “refuse rectification or grant it on terms (eg if there has been a delay, change of
position, or third party reliance)”.1480
11.210 Secondly, the courts require “convincing evidence” of the testator’s intention before
granting rectification.1481 An addition of a new type of mistake which is rectifiable in
section 20 would not change this requirement. Other jurisdictions also enable
rectification in a broader range of circumstances than permitted in England and
Wales,1482 and we are unaware of evidence to indicate that these jurisdictions have
encountered difficulties with unwarranted claims. It might therefore be unlikely that
reform would result in claims where there was no or poor evidence of the testator’s
intention.
11.211 In the contractual context, rectification is possible in a range of circumstances. For
example, a contract can be rectified where the parties’ agreement has been wrongly
recorded without any of them realising the mistake (so-called common mistake
rectification), including where the parties deliberately chose words which do not have
the legal effect they intended.1483 Rectification for common mistake is also available
where, from an objective standpoint, the parties appear to be in agreement, but the
document signed by the parties does not reflect the objective meaning of that
agreement.1484 Common mistake rectification is, however, unavailable where the
agreement fails to have the fiscal or commercial consequences intended by the
parties. 1485Rectification is also possible in cases of unilateral mistake, where one party
signs a document which does not record their intentions, and the other party knew of
the first party’s intentions.1486
11.212 It is also possible to rectify unilateral documents, such as voluntary settlements, in a
broader range of circumstances than those permitted for wills. For instance, following
Re Butlin’s Settlement Trusts,1487 voluntary lifetime settlements can be rectified where
the settlor intentionally used words which do not have the meaning they intended.
However, as with contracts, the court cannot rectify a unilateral document where the
sole mistake is the document’s failure to have the fiscal consequences intended by
the maker.1488
11.213 There are parallels between wills and voluntary settlements: both are unilateral in
nature, and voluntary settlements can also be rectified after the settlor’s death.1489
There may also be similar concerns over the evidence available to support a claim to
rectify a settlement. Accordingly, courts adopt a cautious approach.1490
11.214 Given these parallels, we consider that rectification is currently too limited in the wills
context. We therefore recommend that it should be extended.
11.215 We agree with consultees that section 20 should only be extended to create parity
with the equitable doctrine of rectification applicable to lifetime documents.
11.216 Recommending rectification for all drafting errors would extend the scope of
rectification of wills further than the current scope of rectification in contracts and
unilateral settlements, neither of which can be rectified where the sole mistake is the
document’s failure to have the settlor’s or contracting parties’ intended fiscal
consequences. 1491Such an extension could result in claims where the will does not
have the testator’s intended tax or estate planning consequences, and require the
courts to conduct a wider inquiry into the testator’s purpose.
11.217 Instead, we recommend that rectification of a will should be available on the same
terms as on the application of equitable rectification to a voluntary unilateral
settlement, that is, where the testator had a clear intention in choosing the words they
did but, on construction of the will, the words do not have the meaning or legal effect
intended by the testator. This reform would ensure parity between wills and other
unilateral documents and contracts. It would allow a will to be rectified when, in the
words of Lord Justice Mummery, “the document, as executed, is not a true record of
the settlor's intentions”.1492
11.218 It is important to emphasise that there is a distinction between permitting rectification
where the will does not have the testator’s intended legal effect and where the will
does not have the testator’s intended consequences, fiscal or otherwise. This
distinction has been the subject of case law in cases of rectification of contracts and
other unilateral documents. For example, in Allnutt v Wilding, 1493the settlor executed a
settlement drafted by his professional advisors which created a discretionary trust. In
order to make the tax savings the settlor wanted, he should have made an interest-in-
possession trust (which does not give the trustees discretion as to whether to pay
income to the beneficiaries). Rectification was refused. The settlor’s mistake was
relying on the advisors’ advice that the discretionary trust would involve tax savings;
he intended to execute the settlement which he did in fact execute. There was, in
other words, no mistake.
11.219 Conversely, in Bullard v Bullard, 1494the settlor executed a trust deed intending to
create an interest-in-possession trust. The trust deed also expressly applied section
31 of the Trustee Act 1925, the effect of which was that the trust was not an interest-
in-possession trust in relation to the minor beneficiaries. The settlor of the trust applied
to rectify the trust to exclude the application of section 31. The court concluded that it
had the power to rectify the trust. The claimant had executed a deed that she had
been assured would create an interest-in-possession settlement. There was no
mistake as to the document that she signed, or as to the words included. The mistake
was about the legal effect of those words. The court was satisfied that she had
intended to create an interest-in-possession trust whereby all the primary beneficiaries
would obtain interests in possession. But by using language that had a legal effect
that she and her advisors had misunderstood, she had failed to achieve her intention.
11.220 Giles v Royal National Institute for the Blind 1495provides another example of a
mistake about a document’s effects rather than its consequences. In that case, two
sisters made wills on the same date. In the event, Hilda died shortly before Ellen.
Hilda’s will gave to Ellen a house free of tax, and her residuary estate. The inheritance
tax payable on the house therefore came from the residuary estate, meaning little was
left of Hilda’s residuary estate. Most of the gifts in Ellen’s will lapsed due to the
beneficiaries pre-deceasing her, with the residue of her estate left to four charities.
The effect of the two wills and the order of deaths was that, although the gifts to the
charities were exempt from inheritance tax, they indirectly attracted inheritance tax
because the gifts went from Hilda to Ellen and only then to the charities.
11.221 The personal representative of Ellen entered a deed of variation of Hilda’s will under
section 142 of the Inheritance Tax Act 1984. Her intention was that, by the deed of
variation, Ellen would give up her entitlement to Hilda’s estate in favour of the four
charities, so that Hilda’s estate would be exempt from inheritance tax. However, the
deed of variation to Hilda’s will only amended the entitlement to the gift of residue, not
to the gift of the house: it left the gift of the house, free of tax, to Ellen. Accordingly, the
deed of variation had no impact on the inheritance tax owed by Hilda’s estate,
meaning the gift to the four charities was still being indirectly taxed. The personal
representative sought to rectify the deed of variation.
11.222 The court concluded that the deed of variation was clearly intended to “redirect the
entirety of Ellen's entitlement under Hilda's will to the four charities, rather than just
her entitlement in respect of the residue”. This was therefore a mistake about the
effect of the deed of variation, not only its consequences. The fact that it was clearly
an objective “to relieve the four charities of the indirect burden of inheritance tax” was
no bar to rectification, so rectification was ordered.1496
11.223 The Chancery Bar Association and Richard Wallington suggested that we should
recommend eliminating or extending the time limit on rectification claims. However, we
are not convinced that we should do so, as we believe that there are balancing
considerations. The time limit reflects the need for the personal representatives to be
able to distribute the estate. Moreover, the court can grant permission for a
rectification claim to be made outside the six-month time limit. 1497Accordingly, as we
have not consulted on this issue and are not convinced of its merits, we do not make a
recommendation along these lines.
11.224 We recommended that the power of the court to rectify a will, contained in section
20 of the Administration of Justice Act 1982, should be extended to allow a will to be
rectified where the will fails to achieve the testator’s intentions because the words in
the will do not have the meaning or effect intended by the testator, to the same
degree that the court has the power to rectify a unilateral document such as a
settlement.
11.225 Recommendation 26 is enacted in our draft Bill in clause 16.
11.226 Because the draft Bill is for a new Wills Act, we have taken the opportunity to
consolidate the existing provisions governing wills into one place. As part of that, we
have incorporated into our draft Bill the provisions governing wills that are currently
located in the Administration of Justice Act 1982, including section 20 governing the
rectification of wills.
11.227 Clause 16 therefore restates section 20 while also extending its scope, by including a
new, third type of mistake which causes the will to fail to give effect to the testator’s
intentions. Subsection (1)(b) outlines the three types of mistake which are rectifiable,
with (iii) providing that a failure to “understand the meaning or direct effect of the
language used” in the will is rectifiable. This wording reflects the distinction drawn in
the case law on the rectification of deeds and settlements between a mistake as to the
document’s effect and a mistake as to its consequences. In using this wording, we
intend for clause 16(1)(b)(iii) to permit the court to rectify a mistake in the will for this
type of mistake to the same degree that it can under its equitable jurisdiction to rectify
a unilateral document.1498
11.228 Clause 16 otherwise restates existing section 20 of the Administration of Wills Act
1982, including by replicating the time limit in subsection (2).
11.229 As we have explained, section 21 of the Administration of Justice Act 1982 allows
direct evidence of the testator’s intention to be admitted as an aid to interpreting the
testator’s will. It supports the modern approach to the interpretation of wills - called
the intentional approach - by allowing direct evidence of intention in certain
circumstances.
11.230 We did not ask consultees a question as to whether section 21 should be amended.
But in responding to our question about new interpretive provisions, a few consultees
suggested that it should be clarified or its scope expanded.
11.231 Richard Wallington thought that section 21 should be clarified, in particular, that the
word “meaningless” should be replaced with “obscure, incoherent or otherwise difficult
to make sense of”, and “ambiguous” replaced with “capable of more than one
interpretation". Professor Roger Kerridge also expressed some support for section 21
being re-drafted but thought that interpretation as a topic requires a separate project.
11.232 The Bar Council suggested that section 21 should be revised so that direct evidence
of the testator’s intention can be admitted in a wider range of circumstances. Using
the example of a bank account in the Isle of Man where the testator used the term
“UK” to describe it, it suggested that section 21 might not allow evidence to be
admitted in this case: the term “UK” is not meaningless, is not patently ambiguous,
and arguably is not latently ambiguous even though the testator has no bank accounts
in the UK. It suggested that:
It would be immeasurably more helpful if s 21 was merely triggered by some doubt
or uncertainty about the will’s interpretation or effect. Cases where the testator’s
intentions are 100% clear on the file (though not on the will) are unfortunately
dogged with painful and unnecessary arguments about meaninglessness and
ambiguity.
11.233 We have not been persuaded that section 21 of the Administration of Justice Act
should be either re-drafted to define the meaning of “meaningless” or “ambiguous” or
expanded to extend its scope.
11.234 We consider that the meaning of “meaningless” and “ambiguous” is sufficiently clear.
We explained at paragraph 11.24 above how these terms have been interpreted by
the courts.
11.235 It is not often that the requirement for a will or part of it to be “meaningless” under
section 21(1)(a) has been met, but the courts have interpreted it to mean blank
spaces, omissions and meaningless repetition.
11.236 Courts have usually interpreted “ambiguous” to mean a word or phrase is capable of
having more than one interpretation - whether due to lack of clarity in the wording
itself (under section 21(1)(b)) or because extrinsic evidence suggests that the testator
intended the words to have a meaning which departs from their ordinary meaning
(under section 21(1)(c)).1499 Although there has been at least one case where
“ambiguous” was given a broader meaning, to mean uncertainty regarding the
testator’s intentions, even if there is no ambiguity on a “linguistic.. .analysis”,1500 this
case appears to be an outlier. In the cases since, courts have refused to apply
sections 21(1)(b) and 21(1)(c) where there was no ambiguity in the wording of the
will. 1501We do not think this one case alone warrants tinkering with the substance of
the language of section 21.
11.237 We also do not think that section 21 should be substantively reformed to expand the
circumstances in which direct evidence of the testator’s intention is admissible as an
aid to interpretation.
11.238 We consider that section 21 would apply to allow direct evidence of the testator’s
intention to be admitted where the testator has a bank account in the Isle of Man but
has used the term “UK” in their will. As we explained above, 1502case law now makes it
clear that in such a case the circumstances - the location of the testator’s assets - will
mean there is a latent ambiguity, such that direct evidence of intention can be
admitted under section 21(1)(c).
11.239 We also do not think that permitting evidence of the testator’s intention where, as the
Bar Council suggested, there is “some doubt or uncertainty about the will’s
interpretation or effect” is a sufficiently clear test. We do not think it is clear what would
amount to doubt or uncertainty in that case. It appears to us possible that, for
example, the contention of a disappointed would-be beneficiary or a change from a
previous will might, even where the words of the will were clear, be sufficient to raise a
doubt or uncertainty.
11.240 However, as we have explained above, we do agree with consultees that there could
be cases where the testator’s intentions are being frustrated but neither interpretation
nor rectification currently applies. In particular, these are cases where section 21 does
not apply, so that direct evidence of the testator’s intention cannot be admitted in an
aid to interpreting the will; nevertheless, the words used in the will appear to be a
mistake, inserted not because of a clerical error or a failure to understand the
testator’s instructions, but because of a failure to use the right words to achieve what
the testator intended. As we explain above, we think the appropriate course is to
expand the circumstances in which rectification is available. We therefore make a
recommendation along these lines.
11.241 If the scope of section 21 were instead expanded, interpretation might increasingly
be used as a means to correct instances where a will fails to reflect the testator’s
intentions, reducing the use of rectification. We think this would contribute to the
blurring of the line between the two doctrines. It is undesirable to do so, particularly as
the line between interpretation and rectification of wills is already unclear. In Marley v
Rawlings, Lord Neuberger had the opportunity to rule on the dividing line in the light of
comments by Lord Hoffmann that there is “not...a limit” to the amount of corrections
that a court can make through interpretation.1503 Lord Neuberger noted that these
comments have been criticised for blurring the line between rectification and
interpretation “almost to vanishing point”.1504 However, Lord Neuberger declined to rule
on the distinction as it was unnecessary to do so on the facts of the case.1505
11.242 We think the two doctrines necessarily overlap to a degree: both are concerned with
the intent of the testator. But at their core, we think they should play different roles.
We believe that rectification is the more appropriate doctrine to use when the court is
modifying the words in a will to give effect to the testator’s intentions, rather than
interpreting the words that are there.
11.243 This argument was made in a 2017 article by Judge David Hodge KC. 1506He
explained that in Cherry Tree Investments Ltd v Landmain Ltd, the Court of Appeal
concluded that it was more appropriate to insert a clause into a legal charge of land
through rectification, not interpretation, because the charge was a public document
and could be relied upon by third parties.1507 He argued that the same considerations
apply to wills. Once admitted to probate, a will is a public document and will be
considered and relied upon by third parties, including beneficiaries, next of kin and
executors.
11.244 The terms of a will should be clear so that third parties can rely upon them, and any
changes should be subject to consideration of third parties’ rights. Rectification
includes protection for third parties: there is a six-month time limit for rectification
claims which runs from the grant of probate; and the court has jurisdiction to refuse
rectification or to grant it on specific terms where a third party has relied on the will or
changed their position. 1508There are no such protections in interpretation claims.
11.245 We do not therefore recommend any change to the existing rule governing when
direct evidence of the testator’s intention can be admitted as an aid to interpreting the
testator’s will. Accordingly, our draft Bill restates without in substance amending
section 21 of the Administration of Justice Act 1982, in clause 17.
11.246 Some consultees were opposed to extending the scope of rectification due to their
belief that it would be unnecessary in the light of reform to introduce a dispensing
power. Although there is some overlap between rectification and a power to dispense
with formalities, they are distinct.
11.247 We explained in the Consultation Paper that the doctrines of interpretation and
rectification, and a dispensing power, have the same underlying rationales: to give
greatest effect to the testator’s wishes.
The goal of intentional interpretation is to understand the terms of a will as a testator
meant them; rectification aims to ensure that a will includes the wording that the
testator intended; and a dispensing power gives effect to the testator’s wishes even
when those wishes are not expressed in the prescribed form.1509
11.248 There is therefore some overlap between them. Marley v Rawlings - a switched-wills
case where Mr and Mrs Rawlings accidentally signed each other’s mirror wills rather
than their own - provides a good example. The switched wills case could be decided
under a dispensing power, by admitting to probate as Mr Rawling’s will the document
that his wife executed, with the dispensing power being used to deem his will to have
been properly executed. The case could also be decided under rectification, by
rectifying the document that Mr Rawlings actually executed, that is, the one intended
to be his wife’s.1510
11.249 In Marley v Rawlings, Lord Neuberger expressed the view that a document need not
necessarily satisfy the formality requirements in section 9 of the Wills Act 1837 in
order to be a “will” for the purpose of rectification under section 20 of the
Administration of Justice Act 1982. Part of his reasoning was that:
it appears to me that the reference to a will in section 20 means any document
which is on its face bona fide intended to be a will, and is not to be limited to a will
which complies with the formalities.1511
11.250 However, we agree with Birke Hacker that section 20 does not permit the court to
rectify a failure to comply with the formalities. As she notes, it is one thing to insert into
a properly executed document a passage which was mistakenly omitted, but it would
be entirely another for “the testator’s missing signature to be supplied via rectification”.
We consider that section 20 requires a document which has been properly
executed.1512 Accordingly, while there might be some overlap, the power to rectify a will
cannot entirely perform the same function as a dispensing power.
12.1 Ademption is the rule that a specific gift in a will fails if the testator no longer owns the
gifted property when they die, or the nature of the property has changed. 1513It is
conceptually similar to lapse, where a gift fails if the beneficiary of the gift dies before
the testator.1514
12.2 Ademption is a technical part of wills law, but also an important one. The operation of
ademption can have a significant impact on how the testator’s estate is distributed
under their will, by making gifts invalid in circumstances the testator might not have
considered and in a way they would not have wanted. For example, where a testator
has made a specific gift of their home in their will, but later sells their home, the gift will
be adeemed. The beneficiary of the gift will receive nothing, even if the proceeds of
sale from the house remain in the testator’s bank account (and so in their estate)
when they die. Given that it is common for a person’s most valuable asset to be their
home, and that it is also not uncommon for a person to sell their home late in life to
release funds, ademption will continue to be important.
12.3 In this project, we have considered the possibility of introducing several exceptions to
the general rule of ademption in cases where we thought that the operation of
ademption could be defeating the testator’s intentions. With the benefit of consultees’
views and our own further considerations, we recommend changes to the operation of
the law of ademption in three discrete circumstances.
(1) We recommend that ademption should not apply where the gifted property is
disposed of by a donee acting under a Lasting Power of Attorney (“LPA”).
(2) We recommend that where the testator exchanges contracts to sell the gifted
property, or grants an option to purchase the gifted property, but dies before the
sale is completed or the option is exercised, the doctrine of ademption should
not apply such that the contract or option should not adeem the gift.
(3) We recommend that, where the property is destroyed or lost simultaneously
with the testator dying, the testator should be presumed to have died first, so
that the destruction or loss of the property does not adeem the gift.
12.4 Consultees were generally in favour of other reforms. However, upon reflection, we
think that the current law of ademption already achieves the underlying policy aim of
maintaining or invalidating gifts based on what most testators would have probably
intended, including in circumstances where they are unlikely to have formed a clear
intention. We therefore think that further reforms are unwarranted.
12.5 Gifts in a will fall into one of three categories: specific, general and demonstrative. A
gift’s classification is based on the interpretation of the will. 1515Classification is
important, because only specific gifts are vulnerable to ademption.1516
(1) Specific gifts refer to a specific item of property, which is distinguishable from
the rest of the testator’s estate. Although the courts will generally try to avoid
classifying a gift as specific, the language of the will or the context can
nevertheless show that the testator intended a specific gift. The use of the word
“my” is generally sufficient for a gift to be construed as specific, 1517such as “I give
my diamond engagement ring”.
(2) If there is no indication that the testator is referring to a specific item of property,
the gift is general.1518 General gifts are provided out of the testator’s estate, and it
is irrelevant whether the subject matter of the gift forms part of the testator’s
estate at their death.1519 For example, if the testator makes a general gift of
shares, the executors must purchase those shares for the beneficiary, or pay
the beneficiary a sum of money which represents the shares’ value. 1520Gifts of a
sum of money are general gifts. Gifts of shares are also general gifts, where
there is nothing to suggest that the testator is referring to shares that belong to
them.1521
(3) Demonstrative gifts are hybrid gifts: they are general gifts which are to be paid
from a particular source, such as a sum of money from or out of a named
account. 1522If it is not possible to use the source the testator designated, a
demonstrative gift must be able to be payable as a general gift from other
assets. Therefore, if the testator specifies that the sum is only payable from that
source (for example, a gift of the account), the gift is not demonstrative.1523
12.6 Accordingly, a gift of “500 shares in company X” will usually be interpreted as a
general gift; a gift of “my 500 shares in company X” as a specific gift; and a gift of “500
shares in company X from the sale of my farm” as demonstrative.
12.7 Under section 24 of the Wills Act 1837, a will is to be construed in relation to the
property disposed in it as if the will had been executed immediately before the
testator’s death, absent a contrary intention appearing in the will. Therefore, in relation
to the subject matter of gifts, the will speaks from the testator’s death. Conversely, in
relation to the beneficiaries of gifts, the will speaks from its date, again absent a
contrary intention.1524
12.8 Because a will speaks from the testator’s death in relation to the subject matter of
gifts, gifts can fail if their subject matter is no longer in the testator’s estate when they
die. In particular, a gift may fail by way of ademption where the testator makes a
specific gift of property in their will and the testator no longer owns that property at
their death. The testator may no longer own the property because the property has
been lost, lawfully disposed of,1525 or destroyed. A specific gift will also fail by
ademption where the nature of the gifted property has changed in substance;
however, a gift will not fail if the property has changed in name or form only.1526
12.9 As a result of a gift failing by way of ademption, the would-be beneficiary of the gift
(whom we generally refer to as the beneficiary in this chapter) receives nothing. They
are not entitled to any proceeds of sale of the property, or the value of the property at
the testator’s death.1527
12.10 The rationale for ademption is respect for what the law presumes the testator’s
intentions in respect of the gift to have been. If the testator has made a specific gift
and no longer owns the subject matter of the gift at their death, the law presumes that
the testator would not intend the beneficiary to receive anything else in its place. If the
testator had intended the beneficiary to receive something else instead, the testator
could have amended their will after they disposed of the property.
12.11 However, despite the rationale for ademption being the testator’s intentions,
ademption seems to operate as a rule of law, not a rule of interpretation. The specific
testator’s actual intentions are irrelevant and cannot save a gift from ademption once it
has been established that the subject matter of the gift is no longer in the testator’s
estate. Interpretation plays a role in classifying the gift, and construing what the gifted
property is: both are questions where the testator’s intentions are relevant, in
accordance with the modern approach to interpretation.1528 But the testator’s intentions
are not relevant as to whether a specific gift fails by ademption if the gifted property
(as construed) is no longer in the testator’s estate or has changed in substance.1529
However, this view is far from certain, with some commentators1530 and some
judgments 1531characterising ademption as a principle of construction, rather than a rule
of law.
12.12 Testators may avoid ademption in a few ways.
12.13 First, testators can avoid ademption by how they describe the subject matter of the
gift. Ademption generally applies where the testator has, in the language they have
used in making the gift in their will, indicated that section 24 of the Wills Act 1837
should not apply, such that the property should be ascertained at a point before they
die. When describing the subject matter of a gift, testators can describe it in general
terms, to try to avoid an interpretation that the testator is gifting a specific item that
they own at the time of making their will. In particular, they can expressly ensure
section 24 applies by specifying that the subject matter of the gift is to be identified at
their death. 1532For example, a gift of “the cars which I own at the date of my death” will
not be vulnerable to ademption.1533
12.14 Second, testators can avoid ademption by specifying in their will that the beneficiary is
entitled to the original specific gift and any property which represents the gift at the
time of the testator’s death.1534
12.15 Third, testators may be able to avoid gifts failing by way of ademption by confirming
their original will in a subsequent will or codicil. Confirmation will not save a gift which
has already failed by way of ademption; however, it can influence how the courts
interpret the subject matter of a gift which would otherwise have failed 1535(for example,
a gift of “my present lease”).1536
12.16 The doctrine of ademption works alongside the doctrine of abatement.
12.17 Abatement addresses the situation where the testator’s estate is unable to provide all
the gifts in the will, as well as pay the estate’s debts and expenses.1537 Abatement
determines who bears the shortfall, by outlining the order in which gifts must be
satisfied.
(1) Gifts of residue abate first. Residue is the testator’s estate which they have not
particularly bequeathed. All particular gifts, whether specific, general or
demonstrative, must be satisfied before there can be any residue. Accordingly,
residuary beneficiaries lose out first, as the residue will be used to satisfy all
particular gifts.
(2) General gifts abate next. After the residue is exhausted, the funds for general
gifts will be used to satisfy specific and demonstrative gifts, to the extent that
any demonstrative gifts are to be paid out of a designated fund. 1538Beneficiaries
of general gifts will therefore lose out before beneficiaries of specific gifts or
beneficiaries of demonstrative gifts payable out of a designated fund.
(3) Specific gifts and demonstrative gifts (to the extent they are payable out of a
specific fund) abate last. 1539
12.18 Therefore, a specific gift is vulnerable to ademption but privileged in respect of
abatement; conversely, a general gift is immune from ademption but vulnerable to
abatement. Demonstrative gifts have the best of both worlds, not being vulnerable to
either ademption or abatement.1540
For example, a testator in her will makes a specific gift of her home to her
daughter A, a general gift of £100,000 pounds of stock in Company X to her
son B, and the residue to her grandchildren (B’s children) C and D. At the
time of making her will, the testator’s home is worth £200,000 and she has
funds in a bank account and stocks worth another £200,000.
Three years before she dies, the testator moves to a care home. She retains
testamentary capacity but requires assistance with daily living. The care
home fees end up costing £100,000.
In Scenario A, the testator sells her house to pay her care home fees without
making a new will. The gift to A is adeemed by the sale of the house. After the
testator’s death, the executors buy £100,000 of stock in Company X for B,
and C and D split the remaining £200,000. A gets nothing.
In Scenario B, the testator does not sell her house but pays the care home
fees out of her funds, again not making a new will. On the testator’s death, A
receives the house, and the executors use the remaining £100,000 of the
testator’s funds to buy stock in Company X for B. The gift of residue abates,
so C and D get nothing.
If the care home fees instead cost £150,000, in Scenario B, A would still
receive the house. The gift of residue would abate. The remaining £50,000
would go to B, in the form of stock in Company X, with the remainder of B’s
general gift also abating.
12.19 It is also possible for testators to avoid abatement of a particular gift through careful
drafting.
12.20 In the Consultation Paper, we were concerned that in some cases ademption would
operate to defeat the testator’s intentions. We also doubted that testators should have
to “draft around” problems caused by ademption, noting that testators making their will
without professional advice might particularly struggle to do so.1541
12.21 We noted that the US Uniform Probate Code uses an intention-based ademption rule:
under it, testators are presumed to have intended the gift to fail, but this presumption
is rebutted where it is proved that ademption is inconsistent with the testator’s
intention.1542 However, we were not in favour of reform to adopt an intention-based
approach to ademption. We thought that such an approach would undermine certainty
and make the administration of estates more difficult and expensive.1543
12.22 Instead, we considered whether exceptions to ademption should be created to
operate in four situations:
(1) where a donee of an LPA disposes of property which is the subject of a specific
gift;
(2) where the testator exchanges contracts to sell property or grants an option to
purchase property which is the subject of a specific gift, but dies before the sale
is completed or the option is exercised;
(3) where the testator makes a specific gift of shares but there are changes to the
shareholding before the testator dies; and
(4) where the subject matter of a specific gift is destroyed, and the testator dies,
simultaneously.
12.23 We also considered whether reforms were needed to address other specific
circumstances, or indeed whether wider reforms to ademption were justified.
12.24 Under the current law, there is an exception to ademption where the property of the
testator (called P in this context) is disposed of by the Court of Protection or a deputy
appointed under the Mental Capacity Act 2005 (“MCA”).1544 Paragraph 8 of Schedule 2
to the MCA provides:
(1) Sub-paragraphs (2) and (3) apply if—
(a) P's property has been disposed of by virtue of section 18 [that is, by the
court or by a deputy],
(b) under P's will or intestacy, or by a gift perfected or nomination taking effect
on his death, any other person would have taken an interest in the property
but for the disposal, and
(c) on P's death, any property belonging to P's estate represents the property
disposed of.
(2) The person takes the same interest, if and so far as circumstances allow, in the
property representing the property disposed of.
(3) If the property disposed of was real property, any property representing it is to be
treated, so long as it remains part of P's estate, as if it were real property.
Under this provision, disposal covers the sale, exchange, charging of or other dealing
with property other than money; removing property from one place to another; using
money to acquire property; and transferring money from one account to another.
Successive disposals also fall within its scope.1545
12.25 If the requirements in paragraph 8(1) are satisfied, the gift to the beneficiary of the
property is automatically preserved. 1546The beneficiary will be entitled to the proceeds
of sale, or any other property which represents the disposed-of property under the
testator’s will. Furthermore, the court may make an order to protect the property which
is left representing the gifted property, including an order to keep it in a separate
account.1547
12.26 This exception to ademption does not apply to disposals by donees of LPAs.1548
Donees fulfil a similar role to that of deputies, having the power to deal with the
property and affairs of a person.1549 But any disposal of property by a donee will operate
to adeem a gift in the person’s will.1550
12.27 The difference in treatment between deputies and donees was illustrated in the case
Banks v National Westminster Bank Plc.1551 The testator had appointed her daughter as
attorney under an enduring power of attorney.1552 In that capacity, the daughter sold her
mother’s house and invested most of the proceeds. The daughter did so knowing that,
under the terms of her mother’s will, she was the beneficiary of the house. The sale of
her mother’s house operated to adeem the gift of the house. If the mother had not
appointed an attorney, and the house had instead been sold by a court appointed
deputy, then the daughter would have been entitled to the remaining proceeds of
sale. 1553In the circumstances, however, she was not entitled to them. They fell into the
residue of the estate, which was to be divided equally between the testator’s daughter
and son. Judge Rich QC commented on this outcome:
I recognise that this conclusion means that the claimant, who accepts the duty of
acting as her mother's attorney, is placed in an invidious position in dealing with her
mother's affairs, although not in a way which is totally different from the conflict of
interest that commonly arises where a child is a beneficiary under his parent's will. I
accept that it is unfortunate if results follow from acting in the interests of an
incapacitated parent which she has no means of avoiding.1554
12.28 As we noted in the Consultation Paper, although the daughter in Banks v National
Westminster Bank Plc 1555knew the terms of her mother’s will, she did not understand
the inheritance consequences of selling the house. Even if she had, she may
nevertheless have had to sell the house, under her duty as an attorney to act in her
mother’s best interests.1556
12.29 However, we also noted that ademption would operate in circumstances where the
donee (or attorney) is unaware of the terms of a will. Ademption of a gift might be
avoidable if the donee knew the terms of the will. For example, a donee might be able
to prioritise the sale of assets which are not the subject of a specific gift.1557 To attempt
to ensure that decisions are not made in ignorance of the person’s will, the Law
Society has published guidance clarifying that a solicitor may disclose a person’s will
to their donee or deputy unless the person had previously made it clear that the will
should not be disclosed.1558
12.30 In the Consultation Paper, we thought there was a clear case for reform to allow
donees of LPAs to benefit from the same exception to ademption as deputies.
12.31 We noted that Judge Rich QC took the same view in Banks v National Westminster
Bank Plc, stating that the analogous treatment of donees (or attorneys) “would
desirably be altered” by legislation.1559 We also noted that proposals to exempt
disposals by substitute decision-makers had been made in Alberta, Canada, and
Victoria, Australia.1560
12.32 Therefore, we thought that an exception to ademption should apply to disposals by
donees. However, we explained that a deputy is only able to act where the person
lacks capacity to act for themselves; but absent the LPA providing otherwise, a donee
can act when the donor still has capacity in the case of a property and affairs LPA.1561
To mirror the provision in respect of deputies, we thought that the exception to
ademption should only apply where the donor lacks capacity to act themselves.1562
12.33 We explained that this capacity should be testamentary capacity, rather than capacity
to dispose of the property. That way ademption would only apply in the circumstances
where the person retains capacity to make a new will; if they do not make a new will to
make another gift in favour of the beneficiary, in the light of the ademption, it is most
likely that ademption of the gift would reflect the testator’s intentions.1563
12.34 Accordingly, we provisionally proposed that the MCA should be amended to provide
that a disposal of property by a donee of an LPA, where the donor lacks testamentary
capacity, should not adeem a gift in the donor’s will.1564
12.35 A substantial majority of the consultees who responded agreed with the provisional
proposal to create an exception to the operation of ademption where property is
disposed of by a donee. A minority disagreed or expressed other views.1565
12.36 Consultees in favour of the provisional proposal mainly reasoned that it would create
consistency with the situation where deputies dispose of property. Some argued that
the current distinction is unjustified or senseless. A solicitor1566 thought that the current
law punishes those who plan ahead by making an LPA.
12.37 Others thought that the proposal would produce fairer results, or more often reflect the
testator’s intentions. A retired solicitor1567 provided an example under the current law to
illustrate the hardship that can result from the sale of the testator’s home:
A bungalow was left to [the testator’s] daughters and a small bank account was to
be shared between [the] grandchildren. The testator moved into care, the bungalow
was sold with the proceeds being put in the bank account. The daughters got
nothing and the grandchildren everything. The family would not agree a deed of
variation.
Action on Elder Abuse also noted that our proposal would prevent ademption from
arising when the donee sells an asset to pay the person’s care home fees.
12.38 A few consultees thought that the proposal would encourage donees of LPAs to act in
the testator’s best interests: it would prevent donees from being discouraged from
making a disposal that was in the person’s best interests, and further would remove
any incentive for donees to make “spiteful” disposals to defeat gifts in the person’s
will.
12.39 The Bar Council and Martyn Frost, 1568Stephen Lawson1569 and Professor Robin Jacoby,
responding together, disagreed with limiting the exception to ademption to cases
where the testator lacked testamentary capacity at the time of the disposition. Both
consultation responses suggested that the testator’s awareness of the disposition is
more telling of their intention than their capacity: they noted that where a testator has
capacity but is unaware of the disposition, or perhaps unaware of the need to make a
new will, the disposal would still adeem the gift. The Bar Council commented that
donors who have capacity tend to dispose of their property themselves; it said the real
issue was “over-enthusiastic” donees who fail to consult a solicitor about the
consequences of a disposition, and who often stand to gain from the ademption. The
Bar Council was therefore in favour of the exception to ademption applying whenever
a disposal is made by a donee under an LPA. The Chancery Bar Association was also
in favour of a more general exception.
12.40 Several consultees questioned how the requirement for a lack of testamentary
capacity would operate. For example, CILEx thought it might be difficult to determine
the testator’s testamentary capacity at the time of the disposal, noting that capacity is
difficult to assess and can fluctuate. The Bar Council commented that it might not be
in the donee’s own interests to establish the testator’s lack of capacity. Martyn Frost,
Stephen Lawson and Professor Robin Jacoby, responding together, suggested this
requirement might result in litigation after the testator’s death, given that ademption
frequently arises in relation to significant assets, such as on the sale of a house.
Some consultees also worried that the residuary beneficiary being a charity could
result in ademption being seen as a windfall to the charity, making a finding of
incapacity more likely.
12.41 Several consultees also asked how the provision would operate in terms of the
beneficiary’s entitlement where the gift has not been adeemed.
12.42 Consultees opposed to or expressing other views in response to the provisional
proposal often argued that an exception to ademption in this circumstance might not
reflect the testator’s intentions. Several consultees warned that the effect of the
exception to ademption might be to deprive residuary beneficiaries of their gifts under
the will. For example, the Official Solicitor warned that an exception to ademption
could result in residuary beneficiaries receiving nothing, which is unlikely to be what
the testator intended, or to be in the testator’s best interests. She gave an example of
the exception operating where a disposal is made by a deputy:
For example, it may be that at the time P made their will, the property specifically
gifted formed, say, a 50% share of their entire estate, with the residuary estate
similarly forming 50% of the estate. However, following the sale of the property by
the deputy, it may be that P’s expenditure increases dramatically as a result of care
costs, with the effect that the liquid assets are, or will be, exhausted, with the result
that P’s chosen residuary beneficiaries receive no entitlement under her will. It could
be argued that P, had they known of their change of financial circumstances, would
want their future expenditure shared more equitably between the specific devisee
and the residuary beneficiaries.
The Official Solicitor argued that, in these circumstances, obtaining a statutory will is
the best course, because a statutory will is more likely to represent the testator’s
interests and past wishes.
12.43 Denzil Lush 1570also argued in favour of the holistic approach of a statutory will, noting
in particular the consequences of an order under paragraph 8(6) of Schedule 2 to the
MCA:
When I was a solicitor in private practice, I had a client ... who lived in a small, two-
up-two-down, terraced house ... . Many years earlier she had made a will leaving
her house to her niece, and the rest of her estate to [a charity]. .
Her house . had to be sold to pay her care home fees. At that time, [her] house
was worth £22,000 and the rest of her estate was worth £11,000. The dilemma was
that, if the house were sold and we did nothing about it, [her] niece would lose her
inheritance and the [charity] would receive the entire estate. Conversely, if we made
a preservation of interest order, the care fees would deplete the residue.
As [she] was no longer mentally capable of making a new will herself, the obvious
solution was to apply to the Court of Protection for an order to execute a statutory
will on her behalf, leaving two-thirds of her estate to her niece and one-third to the
[the charity]. . I appeared before my predecessor, who happily approved the
application. The will was signed shortly afterwards and [my client] died two years
later.
In my opinion, instead of bringing attorneys within the ambit of paragraph 8 of
Schedule 2 to the Mental Capacity Act, that paragraph should be revoked. This
would then remove the anomaly between deputies and attorneys.
12.44 Thomson Snell & Passmore LLP 1571also argued that the position of deputies and
donees should be made the same by abolishing the exception in paragraph 8 that
applies to deputies.
12.45 A few consultees also worried that an exception to ademption might influence the
donee’s decision-making and could inhibit donees from accessing the testator’s whole
estate, encouraging them to treat the proceeds of sale separately from the testator’s
general funds, in order to make the best decisions for the testator.
12.46 The operation of ademption is a blunt instrument, particularly where the testator’s
financial circumstances have changed. Ademption will benefit residuary beneficiaries
at the expense of the beneficiary of the specific gift, and an exception to ademption
will benefit the beneficiary of the gift at the expense of the residuary beneficiaries. It is
likely that in many cases neither result will fulfil the testator’s intentions in the context
of their changed circumstances.
12.47 Extending the exception from ademption to disposals by donees will prioritise the
beneficiary of the specific gift ahead of the general and residuary beneficiaries. For
example, if the testator’s home is the subject matter of a specific gift, and that home is
sold, the sale not adeeming the gift could operate unfairly. Expenses during the
testator’s lifetime, such as care home fees, which might otherwise have been met by
the proceeds arising from the disposal of the testator’s home, could instead be borne
by the residue of their estate. Reduction in the residue may prejudice the residuary
and general beneficiaries, as the money (or gifts) which they would have been entitled
to is instead used to meet the testator’s expenses. The residue may also be used after
the testator’s death to meet any outstanding debts and liabilities. As residuary and
general legacies abate first, this means that there is a further risk that these
beneficiaries will lose out.
12.48 We therefore appreciate some consultees’ concerns that the exception as it applies to
dispositions by deputies currently has the potential to operate unfairly. But having not
consulted on the matter, we do not think we are in a position to recommend that the
exception in the MCA which applies to deputies be abolished.
12.49 We think the question for us is a binary choice: whether the exception to ademption
should or should not be extended to dispositions by donees.
12.50 In the interests of consistency, we think that the exception in the MCA should be
extended to donees. We do not see any relevant difference between the role of
deputies and donees in making dispositions of the person’s assets that justifies the
current distinction. We therefore think that the exception which applies to deputies
should be extended to apply equally to donees of LPAs (and attorneys of enduring
powers of attorney).
12.51 We also note that the application of paragraph 8 on its own does not necessarily
mean that proceeds from the disposition of property cannot be used equally with other
assets to pay for the testator’s expenses. While a gift is saved from ademption
automatically whenever the requirements in paragraph 8 are met, orders under
paragraph 8(6) to preserve the proceeds of a sale are discretionary: they are only
available on an application to the Court of Protection, which may grant them where it
is “necessary or expedient” to facilitate the operation of paragraph 8.
12.52 So although we understand consultees’ concerns with paragraph 8(6), we think the
fact that such orders are discretionary should prevent them from being used to unfairly
preserve the specific beneficiary’s interest in the estate over other beneficiaries.
According to the authors of Heywood & Massey, orders under paragraph 8(6) are
unpopular with the Court of Protection: they are an “inflexible presumption in favour of
preserving a legacy” which “may just as easily be inappropriate as appropriate” but
are often inappropriate due to the change in the testator’s circumstances. 1572Instead,
the court prefers statutory wills. A statutory will application gives the court the
opportunity to reappraise the testator’s wishes holistically in the light of their changed
circumstances.
12.53 We agree that a statutory will is better suited to addressing a significant change in the
testator’s circumstances, including where valuable property which is the subject
matter of a specific gift in the testator’s will is disposed of. 1573Irrespective of whether
the disposal adeems the gift, it has implications for the balance of the testator’s estate
and for the beneficiaries. A statutory will is able to consider the testator’s estate as a
whole, to ensure that the balance of gifts among beneficiaries reflects, in the light of
the new circumstances, the testator’s original intentions. It can also mitigate any
unfairness to the specific or residuary beneficiaries as a consequence of ademption
(or its lack). We therefore highlight the value of applying for a statutory will where a gift
in the testator’s will fails by ademption or the testator’s circumstances have otherwise
changed.
12.54 In order to know that a statutory will may need to be applied for, donees will need to
know if there are specific gifts of property made in the donor’s will. Many consultees
emphasised the importance of donees disposing of property being able to have sight
of the donor’s will, or at least being able to confirm whether property is subject of a
specific gift in the will. In her consultation response, the Official Solicitor agreed that
deputies and donees should be made aware of the terms of the person’s will, and
when contemplating the sale of any property that is the subject of a specific gift,
consider “anti-ademption” provisions, including a statutory will. Some consultees also
supported updated guidance from the Office of the Public Guardian in relation to
LPAs, 1574to explain the effects of dispositions of property on the testator’s will. The
Notaries Society of England and Wales and the Northamptonshire Law Society
suggested that there should be a standard tick box on the LPA application form, for
the person to give express consent to donees having sight of their will.
12.55 We agree it is important that the testator’s will be shared with a deputy or donee, so
that they can consider the consequences of any disposition on the testator’s will, and
also consider the need to apply for a statutory will where a disposition must be made
in the testator’s best interests (such as to pay for care). Both the Law Society1575 and
Solicitors’ Regulation Authority 1576have published guidance on the topic. The Solicitors’
Regulation Authority guidance explains that, as a deputy or donee is the agent of the
person, a solicitor can disclose a copy of the person’s will to them if they have lost
capacity, so long as the person did not give instructions to the contrary. The guidance
also highlights the implications that disposals of property can have on the person’s will
and notes the availability of statutory wills. We think that the Office of the Public
Guardian should consider whether guidance should be provided to deputies and
donees about the possible consequences of dispositions under the testator’s will and
in which circumstances they should consider applying for a statutory will.1577
12.56 We have been persuaded by the consultees who raised concerns with the exception
only applying where the testator has lost capacity.
12.57 We agree that in practice it will be difficult to establish that the testator lacked
testamentary capacity at the time of the disposition, particularly as this point will
inevitably be argued in court after the fact, once the testator has died. At the time of
the disposition, there is no reason for the testator’s testamentary capacity to be
addressed. We also note consultees’ concerns that donees might lack objectivity
when providing evidence as to the testator’s capacity.
12.58 We continue to think that the application of the exception should not depend on
whether the testator has lost capacity to make the disposition at the time the donee
disposes of the property. As we explained in the Consultation Paper, looking to
testamentary capacity rather than capacity to make the disposition would focus the
exception on the issue most relevant to whether ademption should apply: that is,
whether the person retains capacity to make a new will, so whether ademption can be
said to best reflect their intentions where they choose not to make a new will in the
light of the disposition. 1578Consultees did not generally disagree with this reasoning.
Moreover, we agree with the Bar Council and Martyn Frost, Stephen Lawson and
Professor Robin Jacoby, responding together, that ademption could operate unfairly
when a donee disposes of property but the donor, although retaining capacity, is
unaware of the sale and so the need to make a new will.
12.59 We therefore think that the exception to ademption should apply in relation to all
disposals by donees acting under LPAs, regardless of whether the testator had
capacity at the time of the disposition.
12.60 We recommend that dispositions of property by donees acting under a Lasting
Power of Attorney should be included within the scope of the exception to
ademption currently in paragraph 8 of Schedule 2 to the Mental Capacity Act 2005.
12.61 This recommendation is enacted in clause 21 of the draft Bill.
12.62 Clause 21 inserts a new section into the MCA, section 43A. This new section restates
the existing exception for disposals ordered by the Court of Protection or by deputies
(by virtue of its reference to disposals under section 18 of the MCA). It also extends
the exception to disposals by donees of lasting powers of attorney (and enduring
powers of attorney). As under current paragraph 8 of Schedule 2, a disposal by a
donee under a lasting power of attorney will not therefore operate to adeem a specific
gift in the testator’s will, as instead the clause provides that the beneficiary of the gift
takes the same interest in any property representing the disposed property.
12.63 It is necessary to repeal paragraph 8 of Schedule 2 and restate it in a new section
which also applies to donees rather than simply amending paragraph 8 to extend it to
donees. That is because Schedule 2 supplements section 18 of the MCA, which
makes provision for the powers of the court and deputies under section 16 in relation
to the person’s property and affairs. As a result, section 18 and Schedule 2 are not
concerned with the powers of a donee under a lasting power of attorney.
12.64 Under the current law, ademption applies to specific gifts of property if, after making
the will, the testator enters a contract to sell the property or grants an option to
purchase the property. In both cases, although the completion of the sale or the
exercise of the option1579 does not take place before the testator dies, any specific gift
of the property will be adeemed.
12.65 Where the testator makes a will which includes a specific gift of property, and later
enters a contract to sell that property, the entry into the contract results in the
ademption of the gift.1580 By entering into the contract, the testator disposes of their
beneficial interest in the property, although they remain entitled to enjoy the property
up to the point in time when the contract completes. 1581Therefore, the beneficiary of the
specific gift only receives the right to enjoy the property from the testator’s death until
the completion of the contract; they are not entitled to the purchase price.1582
12.66 Ademption also occurs where the testator makes a specific gift of property in their will
and then later grants an option to purchase that property. This is the rule in Lawes v
Bennett. 1583However, unlike with contracts of sale where ademption occurs upon entry
into the contract, ademption only takes place once the option is exercised. 1584But
ademption operates retrospectively: the beneficiary of the specific gift receives a
beneficial interest in the property at the testator’s death, despite the grant of the option
to purchase, but loses the beneficial interest retrospectively once the option is
exercised. Consequently, as with contracts of sale, the beneficiary is not entitled to the
purchase price. 1585However, the retrospective effect only affects the beneficiary’s
entitlement to the proceeds of sale; until the option is exercised, the beneficiary is
entitled to enjoy the property and any income from it, such as rent.1586
12.67 Given the general rationale for ademption, in the Consultation Paper we expressed
doubt that the operation of ademption in these circumstances would give effect to the
testator’s intentions. We thought that completion of a sale or the exercise of an option
would be the point at which a testator could reasonably be expected to consider
whether they should make a new will, to make an alternative gift to the beneficiary of
the specific gift. We did not think that entering into the contract or granting the option,
on its own, could indicate the intention of the testator to not make a gift to the
beneficiary of the property.1587
12.68 Accordingly, we thought that reform of ademption was warranted in relation to
contracts for sale (including conditional contracts) and options to purchase.
12.69 We explained that several Canadian jurisdictions had enacted legislation to avoid
ademption in the context of incomplete transfers,1588 and that similar provision had been
made in the US Uniform Probate Code. 1589We noted that the outcome of these
provisions was to give the beneficiary of the specific gift the proceeds of sale of the
property.1590
12.70 We noted in the Consultation Paper that problems surrounding incomplete transfers
would most often arise in the context of contracts to dispose of land, which is usually
sold in a two-stage process of contract for sale and completion by deed of transfer.
However, these issues could arise in relation to other types of property. For that
reason, we thought that any exception to the operation of ademption should apply
broadly, to gifts of any type of property.1591
12.71 Accordingly, we provisionally proposed that a specific gift should not be adeemed
where the subject matter of the gift had been sold but the transaction had not been
completed or was the subject of an option to purchase. We proposed that the
beneficiary of the specific gift should instead inherit the proceeds of sale of the
property.1592
12.72 A substantial majority of the consultees who responded agreed with this provisional
proposal. Only a small minority disagreed, with the remainder expressing other
views.1593
12.73 Those in favour frequently argued that ademption not applying in these circumstances
was more likely to reflect the testator’s intentions. For example, CILEx said:
This proposal could ensure that in a large proportion of cases, the wishes of the
testator are likely to be carried out; subsequently ensuring the beneficiary is not
disadvantaged as a result of the gift adeeming.
The University of Law Birmingham agreed with our analysis that it was likely that the
testator would only update their will after completion of the sale, so that ademption in
these cases may cause unfairness.
12.74 Christopher Jessel 1594also explained that ademption in these circumstances can cause
practical problems where the sale is not completed or the option exercised until a long
time after the testator dies, for example, where the option is exercised after the
executors have been discharged.
12.75 Some consultees emphasised that the beneficiary of the specific gift should only be
entitled to the net proceeds on the completion of the sale or the exercise of the option,
meaning that they take the property as they find it. 1595One consultee noted that this
approach could require the beneficiary to meet the costs of satisfying any charge.1596
12.76 The Bar Council commented that the equitable doctrine of conversion - under which
land subject to a sale contract is deemed to be converted into money - together with
the historical rules governing the succession of personal versus real property, shapes
the current law of ademption in these cases. It supported the proposal given its doubts
that “anyone sells land in order to defeat the expectations of their heirs”, and that
“excluding ademption would get us closer to the testator’s intentions”. The Chancery
Bar Association also referred to the law arising from “a historical quirk ... not known or
understood by the general public and which is generally contrary to their intentions”.
12.77 Christopher Jessel also considered the relevance of the doctrine of conversion. He
explained that these situations applied the doctrine of conversion, which was
abolished by section 3 of the Trusts of Land and Appointment of Trustees Act 1996 for
those dying after 1997. Therefore, he argued that the issue may already be resolved;
even so, he thought it should be made clear.
12.78 A solicitor1597 thought that it must be made clear that the rule in Lawes v Bennett 1598no
longer applies “given the tenacity with which that case has hung on”.
12.79 Several consultees argued that any exception to ademption in these cases should be
subject to the testator expressing the contrary intention.
12.80 Consultees held differing views on the degree to which wills usually contemplate these
situations. DWF LLP1599 commented that wills often provide for this scenario. Hunters,
incorporating May, May and Merrimans, relayed their experience that, if given the
option, testators will inevitably “request that such gifts should encompass the
proceeds of sale”; accordingly, making this provision in statute would “ensure that
testators who are not suitably advised are not prejudiced”. Conversely, the Chancery
Bar Association argued that in many cases clauses designed to prevent ademption in
these scenarios are not used.
12.81 Consultees who opposed the proposal suggested that a testator who has entered a
contract to sell the property or granted an option to purchase the property might have
intended any specific gift of the property to be adeemed. They generally suggested
that entering a contract for sale or granting an option to purchase indicates a clear
intention to dispose of the property and so not to make a gift of it under their will. For
example, a solicitor 1600said that professionally drafted wills generally state whether the
beneficiary is to receive the proceeds of the sale; where they do not, it cannot be
assumed that the testator would not want the gift to fail. Thomson Snell & Passmore
LLP, also perhaps referring to professionally drafted wills, thought that specific gifts
are usually made for sentimental or family reasons; consequently, if the property is
sold the reason for making the gift is defeated. Although only making this argument in
respect of contracts for sale, the Law Society similarly said:
A will is supposed to be ambulatory and a testator is free to dispose of their assets
during their lifetime, irrespective of what is written in the will. If a testator has taken a
decision to sell an asset, then it is unlikely that the testator would intend for the
beneficiary of the specific property to receive the sale proceeds.
This proposed change is likely to have most relevance to the sale of land. We see
little difference between the position between exchange of contracts and completion,
and the position immediately post-completion.
Other consultees also did not think there should be a distinction between the situation
where the completion happens before versus after the testator’s death.
12.82 Some consultees considered the impact of the proposal on charity residuary
beneficiaries. For example, Bircham Dyson Bell LLP Charities Team referred to the
current situation where the testator has entered into a contract for sale or granted an
option to purchase, adeeming the gift. In this case, the team noted that if the
disappointed beneficiary approached the charity for an ex gratia1601 payment, it would
not be right for the charity trustees to pay without evidence that the testator’s
intentions were frustrated despite their own actions.
12.83 Two consultees raised the issue of what the beneficiary should receive under our
proposal if the testator planned to buy a replacement property, entering into a contract
to buy another property with the proceeds of sale from the first. Liverpool Law
Society’s Non Contentious Business Committee asked, “if the proceeds pass to the
beneficiary, how does this work with the executors’ duty to use the money to complete
on the purchase”? Bircham Dyson Bell LLP Charities Team assumed that the
beneficiary would be entitled to the replacement property, which might be more
valuable than the original property; it thought this possibility illustrated the “difficulty of
ascribing an intention to the testator” where the testator themselves had “created the
supposed unfairness”.
12.84 Christopher Jessel also raised what he characterised as “practical complications” from
the proposed policy, suggesting the need for procedures to resolve them.1602
12.85 Although agreeing with the proposal, Mishcon de Reya LLP 1603raised the issue of the
beneficiary of the specific gift potentially receiving a double benefit where, under our
policy, the contract or option does not adeem the gift, but the testator takes account of
the sale by making an equivalent lifetime payment to compensate the beneficiary.
12.86 There has been a relatively recent case in this area of law, in 2017 in Re Aspinall.1604
The High Court concluded that a specific gift of property - a large estate of land - had,
due to the compulsory purchase order made over part of it, been adeemed with
respect to the land subject to the compulsory purchase order. The specific gift was not
revived by the testator’s later will, which was made after the notice to treat was served
and the price ascertained. Accordingly, the remaining compensation payments due for
compulsory purchase fell into the residue. However, these comments on ademption
were obiter, 1605as the case was decided based on the interpretation of the specific gift
in the testator’s final will.1606
12.87 With the benefit of the support of a substantial majority of consultees, we recommend
that ademption should not arise in the case of contracts for sale (including conditional
contracts for sale) and options to purchase.1607 Equally, it should not arise in relation to
compulsory purchase orders,1608 or other circumstances where the law determines that
a statutory contract for sale has arisen.1609
12.88 We continue to believe that testators who enter into a contract for sale or grant an
option to purchase are more likely to consider the consequences of doing so on their
will only once the sale is completed or the option exercised. We think the same
reasoning applies to statutory contracts for sale or disposal. We think the testator will
still consider themselves the owner of the property, and so still assume that they can
dispose of it in their will. Accordingly, we think that most testators would have intended
to place the beneficiary in their shoes, meaning that the testator would have intended
that the beneficiary receive the property subject to the contract or option, meaning
being entitled to the proceeds of sale less any costs associated with it.
12.89 This approach would put the beneficiary in the same position as they would have been
if the contract was entered into, or the option granted, before the testator made their
will.
12.90 Where the testator enters into a contract of sale, or grants an option to purchase,
before making a specific gift of that property in their will, the gift is not adeemed. The
specific gift passes the testator’s interest in the property at their death to the
beneficiary, and so the beneficiary is entitled to the proceeds of sale when the
contract completes or the option is exercised after the testator’s death. That is
because the gift is interpreted in the light of what the testator would have known at the
time they made their will: that their property was subject to a contract or option. 1610
12.91 Similarly, the beneficiary is entitled to the proceeds of sale where the testator makes a
will which includes a specific gift of property, grants an option to purchase that
property, and at the same time1611 or afterwards confirms their will in a codicil.1612
12.92 Our policy is that beneficiaries of gifts of property subject to incomplete transfers or
over which an option to purchase has been granted should be in the same position,
regardless of whether the will came first or the contract or option came first. This
approach would ensure that a beneficiary receives the proceeds of sale irrespective of
whether a testator enters into a contract or grants an option before or after concluding
a will which includes a specific gift of the property.
12.93 We think that any provision in a new Wills Act disapplying ademption in these cases
should be subject to the contrary intention being shown in the will. As the purpose of
this policy is to reflect testators’ intentions more accurately, testators should be able to
decide that they nevertheless wish a specific gift to be adeemed.
12.94 We continue to think that law reform is necessary because the doctrine of conversion
has not been abolished in these circumstances. Accordingly, due to the operation of
the doctrine of conversion, specific gifts of property which have been converted will fail
due to ademption.
12.95 Conversion is an equitable doctrine which, when a contract for sale is entered into,
transforms the seller’s interest in the real property into a beneficial interest in its
purchase price; it therefore converts land into money (or, for the purchaser, money
into land). 1613This is because equity “looks upon things agreed to be done as actually
performed”.1614
12.96 Due to the rule in Lawes v Bennett, the doctrine of conversion also applies in relation
to the grant of an option, for the same reasons: when an option is granted, at the time
the holder of the option exercises it, the real property becomes personal property in
the seller’s hands. 1615As we explained above, in this case ademption applies
retrospectively back to the date of the grant of the option.1616 It is not entirely clear why
ademption should operate retrospectively, as the conversion does not appear to do
so. 1617But regardless of when the conversion takes place, ademption does operate
retrospectively back to the date of grant, such that a gift of the property fails. The
retrospective operation of ademption in relation to options to purchase seems to be
why commentators find the rule in Lawes v Bennett unsatisfactory.1618
12.97 Because the equitable doctrine of conversion changes the real property into personal
property, the property in the testator’s hands has changed in substance: the land is
converted into the proceeds of sale. 1619Therefore, the subject matter of the specific gift
is no longer in the testator’s estate when they die.1620
12.98 As we noted at paragraph 12.90 above, the gift is not adeemed if the contract
predates the will: this result flows from the fact that the conversion of the property into
money has already taken place, before the testator makes the gift in their will.
Similarly, if the option predates the will, ademption cannot operate retrospectively to
before the will was made. According to the rules governing interpretation, the subject
matter of the specific gift will be interpreted to be what the testator had in their
possession at the time they made their will, meaning the property subject to the
contract or option. Therefore, with the operation of the doctrine of conversion, what
the testator gave in their will is the proceeds of sale, not the property itself.1621
12.99 But where the contract is entered or option is granted after the will is made, it will
adeem the gift. 1622Because conversion continues to apply, altering the subject matter
of a specific gift in the testator’s will, that means ademption continues to apply.
Therefore, law reform is necessary to ensure that beneficiaries of specific gifts are in
the same position regardless of whether the contract is entered into or option granted
before or after the will is made.
12.100 In relation to the situation where a testator makes a gift of specific property, subject
to a contract or an option, and has also contracted to purchase another property with
the purchase price, the beneficiary will be entitled to step into the testator’s shoes.
The beneficiary will be entitled to the first property subject to any proprietary interests
in it, including a vendor’s lien for unpaid purchase money. The beneficiary will
therefore be entitled to the proceeds of sale from the first property. However, the
testator’s executors will be obliged to fulfil the contract to purchase the second
property, which might require them to use the proceeds from the sale of the first
property. However, the executors would then be obliged to sell the second property in
order to give the beneficiary of the gift the proceeds of sale (less any costs) from the
sale of the first property.1623
12.101 Christopher Jessel raised several practical complications with our provisional
proposal, which would arise if these circumstances did not adeem specific gifts:
(1) whether, on an option for sale, the beneficiary should be entitled to the option
fee paid during the testator’s lifetime or, in the case of renewal option fees, paid
after the testator dies;
(2) where the specific gift is deferred, for example, being in remainder to take effect
after a life interest, but the option is exercised during the life interest;
(3) where different parts of the optioned land are devised to different people, where
there is a need to apportion the proceeds of sale among the different
beneficiaries; and
(4) where the testator retains an option to re-purchase part of the land where after
development it has been laid out as a public open space.
Christopher Jessel thought that there should be procedures to resolve these
complications.
12.102 Although these circumstances are complicated (and other, equally complex
scenarios can be envisaged), we think they are addressed by preserving the gift to the
beneficiary subject to the option. We do not think that it is necessary or desirable to
make specific provision for them; nor, given the variety of scenarios that might be
envisaged, would it be possible for any legislation to be exhaustive. Because these
same complications can arise where the contract is entered or option granted before
the will is made, the law will already have ways of addressing these issues. For
example, in relation to an option to purchase, the law provides that the beneficiary is
entitled to the profits payable between the testator’s death and the exercise of the
option.1624 We think the same principle would apply to option fees payable during that
time.
12.103 Mishcon de Reya LLP queried what would happen under our policy if, after entering
the contract or granting the option, the testator made a lifetime gift of a compensation
payment to the beneficiary. A testator might do this if they assumed that entering the
contract or granting the option would adeem the gift. The beneficiary could receive a
double benefit - the lifetime gift (the payment) and the gift under the will (the property
subject to the contract or option).
12.104 We think this issue would be resolved by the equitable presumption of satisfaction of
a legacy by another legacy. The question of satisfaction in this instance arises where
a testator makes a gift to a beneficiary under their will, and then in their lifetime gives
the beneficiary the same gift.1625 The question is whether the testator intended the gifts
to be cumulative, meaning the beneficiary takes both, or substitutional, meaning they
take the latter one in substitution of the earlier one. The general rule of construction is
that the testator will intend them to be cumulative. But, if the testator makes two gifts
for the same motive, the law presumes the gifts to be substitutional. In relation to the
lifetime gift, evidence is admissible to establish the testator’s intention in making that
gift.1626
12.105 Accordingly, if a testator makes a lifetime gift to the beneficiary of a specific gift under
their will, based on their belief that the previous gift in the will failed, if the gift in the
will does not fail, it seems that the lifetime gift could be determined to be in satisfaction
of the gift in the will.
12.106 We recommend that a specific gift of property, where the subject matter of the gift
is made subject to a contract for sale (including a conditional or statutory contract)
or an option to purchase, should not be adeemed, subject to a contrary intention
appearing in the will. The beneficiary should be entitled to property which represents
the gifted property at the testator’s death, or the purchase price subject to any costs.
12.107 This recommendation is enacted in paragraph 10 of Schedule 3 to the draft Bill for a
new Wills Act. It does not seek to disapply conversion, but simply provides that, where
property disposed of by a will later becomes subject to a contract for sale or option to
purchase, the disposition has effect despite the contract or option. That is, the
beneficiary will receive the property “subject to the transaction”, that is, subject to
contract or option.
12.108 Paragraph 10 will apply to specific gifts, that is where the testator makes a gift of an
identifiable item or parcel of land that they own, such as “my house in Solihull”. It will
also apply to residuary gifts of real property, such as a gift of “all of my land” or “all the
real property in my estate when I die”. Technically such gifts cannot be adeemed,
since they are not a gift of an identifiable parcel of property to be ascertained at a time
before the testator dies. 1627However, because the testator entered into a contract for
sale or granted an option to purchase the property, the doctrine of conversion will
operate to change the property in the testator’s hands from land or real property to
personal property. Accordingly, the property will not fall within the meaning of land or
real property for the purpose of the residuary gift at the time the testator dies, and the
gift will not include that property. We cannot see any reason why conversion should
prevent these types of gifts from operating as the testator no doubt intended.
Accordingly, residuary gifts of “my land” or “the real property in my estate”, due to the
use of “my”, are also captured by paragraph 10 in its reference to a disposition that
“specifically refers to the property”.
12.109 Ademption arises when the nature of the property subject to the specific gift changes
after the testator makes their will. A specific gift fails by ademption only where the
nature of the gifted property has changed in substance. The gift will not fail if the
property has changed in name or form only.1628
12.110 In the Consultation Paper, we thought that the distinction between form and
substance might have caused difficulties, particularly in the context of specific gifts of
shares. We cited the different outcomes in two older cases. In Re Slater, 1629a gift of
shares in the Lambeth Waterworks Company failed by way of ademption after
Lambeth opted for its shareholders to receive as compensation shares in the
Metropolitan Water Board rather than cash. But in Re Clifford,1630 a gift of shares was
not adeemed after the company changed its name and subdivided its shares.1631
12.111 We expressed concern that the testator’s intentions may be frustrated where a gift of
shares fails without the testator doing anything to bring about the change in the
shares. We thought that the unilateral act of the company was, together with
ademption, subverting the testator’s intentions. We also noted that the US Uniform
Probate Code includes an interpretative provision that gifts of shares are to be
interpreted to include additional shares acquired by events such as the declaration of
stock splits, stock dividends, or spinoffs of a subsidiary.1632
12.112 Accordingly, we provisionally proposed to amend the law so that ademption should
not apply where shares subject to a specific gift had been changed due to the
company’s dealings which the testator had not brought about.1633
12.113 A very substantial majority of the consultees who responded agreed with this
proposal, with the remainder roughly divided between those disagreeing and
expressing other views.1634
12.114 Many consultees in favour said the proposal seemed reasonable. A number also
agreed that the testator would be unlikely to have intended that a gift of shares would
adeem where the company makes changes to the shareholding. These consultees
included the Law Society, who said:
The unilateral act of the company is likely to subvert the testator’s intentions and it is
preferable that the law provides an outcome which is most likely to marry up with the
testator’s intentions.
A few consultees noted that, in practice, wills are normally drafted to cover
replacement shares, but that clarity would be nevertheless helpful. Others commented
on the benefits of certainty in the law.
12.115 Some consultees thought that the proposal would have practical benefits. Dr Richard
Hedlund1635 said that many companies restructure or merge or are subject to
takeovers. Although disagreeing with the proposal, Liverpool Law Society’s Non
Contentious Business Committee said that “change in company structure is common.
Share ownership has increased due to privatisation and bank windfalls”.
12.116 In response to another consultation question, about whether ademption should not
arise in other specific circumstances (discussed at paragraph 12.154 and following
below), a number of consultees considered similar difficulties that may arise where
there are changes to the testator’s bank account. Two firms of solicitors1636 thought
that ademption should not apply where a bank account changes name, the bank
changes name, or the bank is merged with another bank. The Bar Council, a solicitors’
firm,1637 and a retired solicitor 1638thought that ademption should not apply where sums
are transferred to a different bank or building society account or, in relation to a life
insurance policy, where the company or policy number changed.
12.117 Some consultees who agreed suggested modifications to the policy or asked how it
would operate in practice. In particular, some queried the circumstances in which the
testator would be considered to have brought about the change, for example, if they
had voted as a minority shareholder or where the shareholders had consented to the
change. An independent trust consultant 1639said that “the only situation where there
can be certainty that they have not ‘brought about’ the change in form is if they are
classified as a ‘dissenting shareholder’”. Bircham Dyson Bell LLP Charities Team also
noted situations where the shareholders will have been offered a choice as to what to
accept: “if the testator retained the ‘shares’ but in some different form (eg in the
takeover company), has s/he ‘brought about’ the change of form?”. It suggested that a
more appropriate test might be if the testator was aware of the change.
12.118 Some consultees expressed concerns that the provisional proposal would result in
executors having to trace assets, particularly where changes had taken place long
before.
12.119 Consultees opposed to the reform argued that wills can be drafted to avoid
ademption where shareholdings have changed, or that the issue does not arise often
in practice. For example, Thomson Snell & Passmore LLP said:
While we agree that such a rule would better reflect the intentions of testators, we do
not believe that there is a serious problem to be addressed here. It is notable that no
recent cases are cited in support of your argument. We believe that professional will
drafters are aware of this trap and enable testators to avoid it.
Also referring to the difficulties in establishing whether the testator was involved in
bringing the change about, Thomson Snell & Passmore LLP was “concerned that this
rule has the potential to cause more problems than it will solve”.
12.120 We are not aware of any developments in relation to this aspect of ademption, that is,
the distinction between changes in form and substance.
12.121 However, a recent case illustrates the rule that changes in substance result in
ademption. In Rokkan v Rokkan,1640 in her will the testator had made a specific gift of
the balance of her two bank accounts in a bank in Norway. Before she died, she had
transferred the whole of the balances of those accounts to an account in the UK. On
this preliminary issue, the court determined that since the property referred to in the
specific gift did not exist, the gift failed.
12.122 Although we are generally in favour of the policy we proposed in the Consultation
Paper, on reflection, we do not think law reform is necessary to bring it about. That is,
we think our provisional proposal did not go any further than the current law’s
distinction between changes in form and substance.
12.123 We do not now consider that our provisional proposal would add clarity or certainty to
the law. We agree with those consultees who did not think it would be helpful to
impose a distinction based on whether the changes were brought about by the
testator or not. Consultees outlined the difficulties in trying to differentiate where a
testator might be seen to participate in changes and where they might not, as well as
the difficulties in establishing their participation after the fact. We agree that these
difficulties have the potential to cause more problems than they could solve. We
therefore think that the law should continue to distinguish between changes in form,
where a specific gift is not adeemed, and changes in substance, where it is,
regardless of the testator’s involvement in those changes.
12.124 It is already the case that ademption only applies to changes in substance, not in
form. In considering the case law on this point, the below changes were determined to
be changes in form only, so ademption did not apply to the specific gift of the property:
(1) the subdivision of shares by the company;1641
(2) the amalgamation of two banks, where the testator received shares in the
amalgamated bank in exchange for their old shares;1642
(3) the conversion of shares into stock in the same company, following a vote by
the company;1643
(4) the conversion of shares into annuities in the same company, following an Act
of Parliament;1644
(5) the change in the value of shares, following a resolution by the company;1645
(6) the reissue of shares following restructuring by the company, where the
company had the same name both before and after restructuring and was
“substantially the same”;1646 and
(7) the transfer of money in one bank account to another account at the same bank
in order to benefit from an increased interest rate.1647
12.125 We are aware of only two instances where the court concluded that due to dealings
of the company, the property subject to a specific gift had changed in substance, and
so failed by way of ademption.
(1) In Re Lane,1648 the testator owned debentures in a company. When the
debentures became payable, the company was not willing to renew them. It
instead offered the testator the option of converting them into stock in the same
company, which the testator accepted. The court determined that the testator’s
specific gift of the debentures failed.
(2) In Re Slater,1649 the testator gave a specific gift of interest arising from, among
other things, “money invested in the ... Lambeth Waterworks Company”. This
private company was later acquired (together with all other metropolitan water
companies) by the Metropolitan Water Board under the Metropolitan Water Act
1902. In accordance with the scheme under the Act, the testator received stock
in the Water Board as compensation for his shares. The court determined that
the two companies were substantially different, in particular in relation to the
source of their profits, such that stock in them were also different. The specific
gift of the testator’s shares in Lambeth therefore failed.1650
12.126 Our provisional proposal would not appear to make a difference to cases like Re
Lane:1651 debentures, as a form of unsecured debt, are a different asset to stock.
Arguably, this is a change in substance. Conversely, shares being converted into
stock or annuities, which are all types of investment, is only a change in the form of
the property.
12.127 On reflection, we think the change of property in Re Slater1652 was also arguably a
change in substance rather than form. Instead of owning stock in a private company,
at the time of his death the testator owned stock in a public body, the Metropolitan
Water Board.
12.128 Even if the court in Re Slater was wrong to characterise the change as one of
substance rather than form, we do not think that law reform is justifiable to address
this one case, decided more than a century ago. In relation to changes in the property
owned by the testator, whether or not the property changed in substance will be a
fact-dependent analysis. We do not think law reform could alter this. Nor do we think
that law reform could improve on the current position.
12.129 Whether a specific gift of shares or the sums in a named bank account, if the stock or
bank account has changed in substance, we think that it could be reasonably thought
that the testator intended the gift to fail. Determining otherwise would essentially
change specific gifts where the property is stocks or funds in an account into general
gifts; but we do not think that can be assumed to be the testator’s intention in making
a specific gift. We also think it would be difficult to confine this reasoning to stocks and
bank accounts, and not gifts of other types of property. We therefore think that the law
should continue to distinguish between changes in form, where a specific gift should
not fail by ademption, and changes in substance, where it should.
12.130 Accordingly, we do not recommend law reform on this point, despite generally
supporting the policy we put forward in the Consultation Paper.
12.131 Ademption takes place when property that is the subject matter of a specific gift is
destroyed before the testator’s death.1653
12.132 If the property is destroyed more or less contemporaneously with the testator’s death,
such that the exact order of events is uncertain, the property is presumed to have
been destroyed first, before the testator died. Accordingly, the destruction of the
property adeems the gift. As a result, the beneficiary is not entitled to the proceeds of
any insurance claim which forms part of the testator’s residuary estate.1654
12.133 In the Consultation Paper, we explained our view that the presumption appears
inconsistent with the rationale for ademption in giving effect to the testator’s intentions:
the testator had no opportunity to make a new will to give the beneficiary an
alternative gift.1655
12.134 Accordingly, we provisionally proposed that where the testator dies simultaneously
with the destruction of property that is the subject of a specific gift, the beneficiary
should be entitled to the value of the property.1656 We were aware that if gifts are saved
from ademption in these circumstances, especially where the property was particularly
valuable, recourse to the rest of the estate could cause hardship on the other
beneficiaries. However, we noted that valuable items or property are likely to be
insured.1657
12.135 Most of the consultees responding agreed with the provisional proposal to entitle
beneficiaries to the value of the gift where the gift was destroyed simultaneously with
the testator’s death. A minority opposed it or expressed other views.1658
12.136 Consultees in favour generally described the proposal as fair, logical, or reflective of
the testator’s intentions. For example, the Law Society agreed with the proposal in
general because the testator would not have an opportunity to update their will. The
Law Society agreed that most valuable items are likely to be insured, and that it would
be more likely that the testator intended the beneficiary to receive the insurance pay-
out than the residuary estate receiving a “windfall”.
12.137 Consultees opposed to the proposal disagreed that, where the gifted property was
destroyed, the testator would necessarily have intended the beneficiary to have the
value of the gift, or to benefit over the residuary beneficiaries. For example, Thomson
Snell & Passmore LLP said:
If you take our position that ademption actually exists in order to reflect the well-
advised testator’s intention to give an item for sentimental rather than pecuniary
reasons ..., then the current position makes sense. We believe it should be retained.
12.138 Many consultees, including some who agreed with the proposal, thought that the
proposal could create unfair results where the property was not insured. These
consultees were generally in favour of the beneficiary only being entitled to the
insurance proceeds or damages from a claim for the loss of the property. For
example, the Bar Council said:
If the asset is destroyed uninsured, we consider that the loss should probably lie
where it falls. This proposal seems to us not to represent anything to do with
ademption, but some form of statutory compensation. It is far from clear to us that it
is logical, workable or responds to any perceived injustice. Specific items capable of
being destroyed are usually given not for the value they have, but so the recipient
can enjoy the ownership as the testator has done. And it should not be assumed
that residue will be sufficient to fund the compensation without injustice. The article
destroyed may have a disproportionate value, unknown to the deceased (as in the
recent case of the £9m Chinese vase where the testatrix kept her umbrellas, given
as a legacy and happily not broken before auction, in an estate worth far less).
A solicitor1659 commented that it is not safe to assume that the gift is insured,
particularly “as lots of older people let their contents insurance lapse, particularly when
they become asset rich and cash poor”.
12.139 Some consultees also considered the difficulties in determining what would amount
to destruction (would significant damage count, and what about irretrievable loss or
theft?1660) or simultaneity (if the testator died in hospital several days after a car crash,
was the destruction of the car and their death simultaneous?). On the latter point,
some consultees suggested there should be a period of time during which even if the
testator clearly died after the property was destroyed, or the destruction and death
arose from the same incident, the events should nevertheless be considered as
simultaneous: in these cases, the testator did not have a real opportunity to update
their will. One consultee thought it would be anomalous if the result would be different
depending on whether the destruction of the property happens shortly before, as
compared to simultaneous with, the testator’s death.
12.140 Other consultees thought that the proposal could produce anomalous results. For
example, Richard Wallington 1661thought that under our proposal, where the death and
destruction were simultaneous the beneficiary could be in a better position than where
the destruction of the property happened shortly after the testator’s death.
12.141 Some consultees commented on the difficulties executors could face in valuing the
destroyed gift.
12.142 Some consultees also said that the testator should be able to express the contrary
intention in their will.
12.143 As we believe the beneficiary should be able to step into the testator’s shoes in
relation to property subject to incomplete transfers and options, we also believe that
the beneficiary should be able to step into the testator’s shoes if the property is
destroyed simultaneously with their death. This approach will allow the loss to lie
where it falls, giving the beneficiary any value that might be in the testator’s estate
which represents the destroyed or lost item, including any insurance proceeds.
12.144 With the benefit of consultees’ views, we now consider that the beneficiary should not
otherwise be entitled to receive the value of the property from the estate. They should
only be entitled to any property which represents the destroyed or lost item.
12.145 Our policy is effectively that, where it is impossible to ascertain the order in which the
gift was destroyed or the testator died, the beneficiary of the gift should be in the same
position as if the property was destroyed after the testator died but before it was
distributed to the beneficiary.
12.146 Where property which is the subject of a specific gift is destroyed after the testator’s
death but before distribution, there is no ademption. Instead, the beneficiary is entitled
to the property as they find it. If the destroyed property was insured, the beneficiary
would be entitled to receive the proceeds of any insurance claim. If the property were
uninsured, the executors of the testator’s will might be liable to account for the subject
matter of the gift from their own assets.
12.147 Executors have a duty to collect the deceased’s real and personal estate in order to
pay their debts and liabilities; they then have a duty to administer the estate once it
has been collected.1662 This duty includes a duty to protect and preserve the estate
once it has been collected. 1663Breach of these duties can lead to liability to account for
the subject matter of the gift where -
(1) the subject matter of the gift was “in their hands”, or would have been, but for
the executor’s wilful default; and
(2) the executor was at fault for its destruction (under an action in “devastavit”) or is
liable to account for their failure to insure the property.1664
12.148 Our policy is therefore not to interfere with the operation of ademption in these cases.
It is simply to reverse the presumption: that where a testator’s death and the
destruction or loss of property subject of a specific gift is simultaneous, the law should
presume that the property was destroyed after the testator died. The existing law will
therefore apply to govern what the beneficiary is entitled to. Where the property was
insured, the beneficiary will be entitled to the insurance payment.
12.149 This reversal of the presumption should, however, be subject to the testator
expressing the contrary intention in the will. It seems unlikely that a testator would
state that a beneficiary of a specific gift should not receive it if the gift is destroyed or
lost at the same time as their death, but it should nevertheless be possible for a
testator to do so.
12.150 Although we understand the arguments that it might seem anomalous for a different
result to follow where the gift was destroyed shortly before as opposed to shortly after
the testator died, we think a line must be drawn at the testator’s death. This is where
the line is already drawn; our policy is simply to reverse the presumption that the
property was destroyed first so that, instead, the testator is presumed to have
perished first.
12.151 If the property is destroyed first, whether the testator actually had the opportunity to
amend their will after the property was destroyed would be, in many cases, an
impossible question to answer. What would be sufficient time? Is it enough time to
consider the need for a will and hastily write one and execute it in compliance with the
formalities, or is it enough time to receive legal advice and review various drafts of a
will? These questions arise generally in relation to ademption, or what comprises the
testator’s estate on their death, not simply ademption in the circumstances where the
subject matter of the gift has been destroyed. For example, it also applies in relation to
whether a disposition of the property takes place before or after the testator’s death.
The operation of wills law is based on the event of the testator dying, and it would
seem odd to deviate from that rule in this specific instance.
12.152 We recommend that, where the testator dies and the subject matter of a gift is
destroyed or lost in circumstances where it cannot be determined which happened
first, it should be presumed that the testator died before the property was destroyed
or lost, subject to a contrary intention appearing in the will.
12.153 This recommendation is enacted in paragraph 9 of Schedule 3 to the draft Bill.
12.154 In the Consultation Paper, we also asked consultees whether there were other
specific instances, which we had not identified, in which we should consider whether
the application of ademption should be mitigated.1665
12.155 Although some consultees suggested further reforms, we have not taken any of them
forward, so do not make any other recommendations to mitigate the effect of
ademption in specific circumstances.
12.156 One consultee thought that accidental loss of property beyond the testator’s control
should not result in ademption of a specific gift. Similarly, STEP and an independent
trust consultant1666 both said that where the subject matter of a gift is stolen
simultaneously with the testator’s death, the beneficiary of the specific gift should be
entitled to receive any insurance proceeds rather than being compensated out of the
residuary estate.
12.157 Dr Derek Whayman 1667suggested that, if the property is disposed of or destroyed
during a certain period before the testator died, the gift should not be adeemed. He
thought six months might be a suitable period before which a presumption could be
justified that the testator intended to disinherit the beneficiary of the specific gift.
12.158 The Law Society said that ademption should arguably not apply to any gifts of
property which are by description, for example, a gift of “my car”. It said the testator’s
likely intention in making such a gift is to give the item matching the description that
they own at the time of their death. The Law Society also suggested that a
presumption should apply in the case of a gift of the testator’s home, such that it
should be regarded as the testator’s home at the time of their death.
12.159 Christopher Jessel also proposed the need to make provision in relation to gifts of the
testator’s home. He suggested an exception should arise in relation to a gift referring
to the particular property where the testator was living at the time of their will, where
there is evidence that the testator intended to give their home at the date of their
death. He thought that such an exception might particularly benefit surviving spouses
where the testator had sold the property referred to in the will but acquired another or
had moved into a residential care home. Christopher Jessel suggested that the “court
be given a power to rewrite any such clause in a will”.
12.160 One consultee suggested that property called in as security for a guarantee should
not give rise to ademption.
12.161 Some consultees thought any further rules or exceptions to ademption would be
undesirable, often citing complication and uncertainty for executors. Liverpool Law
Society’s Non Contentious Business Committee also noted that, where gifts do not fail
due to ademption, complicated questions of valuation may arise. DWF LLP1668 argued
that testators themselves should specify, in their wills, the consequences if the subject
matter of a specific gift is no longer available. A retired solicitor1669 also warned that it
would not be possible to make provision for all the various scenarios where ademption
might be mitigated. Other consultees thought the law made adequate provision as it
is.
12.162 We do not think that any of the specific suggestions raised by consultees warrant
reform, so we do not make any other recommendation for reform to the law of
ademption in specific circumstances.
12.163 We do not think specific reform is necessary to address the situation where the
property which is the subject matter of a specific gift is lost rather than destroyed.
Specific gifts of an item will adeem where they are lost, as in the case of Durrant v
Friend (where the property was lost at sea).1670 Where the item was lost
simultaneously with the testator’s death, Recommendation 29 will apply, so that when
the order in which the item was lost and the testator died cannot be determined, it will
be presumed that the testator died first, such that the gift will not be adeemed.
However, if the item was lost before the testator died, we do not think an exception to
ademption should be created. We do not see the distinction between the item being
sold or destroyed on one hand and lost on the other. In both cases, we do not think it
can be assumed that the testator wanted the beneficiary to have something else in its
place, when they did not make a new will to reflect the fact that they no longer had the
item they had gifted.
12.164 We also do not think that reform is necessary in relation to theft of property.
Ademption does not apply where the property has been converted without lawful
authority. The cases on this point deal with the testator’s agent acting beyond the
scope of their authority1671 or where someone was acting on behalf of the testator
without any authority at all. 1672Although we cannot find a specific case dealing with
theft, the case authority refers to “tortious” actions by another as not resulting in
ademption, 1673making it, in our view, sufficiently clear that theft would not result in
ademption.
12.165 The Law Society suggested that ademption should not apply to specific gifts by
description, such as “my car”, in order to “reverse the implied contrary intention to
section 24 of the Wills Act 1837”. The main case on this point is Re Sikes, 1674where
the testator made a gift in her will of “my piano”. The court determined that this
wording was sufficient to displace section 24 of the Act, meaning that because the
testator had sold the piano she had owned at the time she made her will and
subsequently acquired another one, the sale adeemed the gift and the beneficiary did
not take the new piano.
12.166 Prior to the Wills Act 1837, a will could not speak to real property which the testator
had acquired after the date they made their will. Section 24 changed the law on this
point to provide that the subject matter of a gift is to be construed as consisting of the
property which meets the description at the time the testator dies, subject to the
contrary intention.
12.167 The question is whether the description of the gift is generic or particular. If it is
particular, this shows an intention to give a specific item in existence at the date of the
will, such that there is an intention to exclude the application of section 24. 1675This is a
fine distinction, and does not always result in consistent answers: as put by Theobald
on Wills, “there may be controversy in the answer”;1676 or, according to Parry and
Kerridge: The Law of Succession, “the cases are not easily reconciled”.1677
12.168 The result in Re Sikes 1678can be contrasted with the case of Castle v Fox,1679 where
the judge said in an obiter comment that a gift of “my house in Grosvenor Square” or
“my brown horse” should be interpreted in accordance with section 24 as speaking
from the testator’s death. It might be, as suggested in Parry and Kerridge, that the
facts of Re Sikes drove the result: the testator had sold her original piano to the
husband of the beneficiary of the specific gift for £5; she then bought the new piano
for £228. As noted in Parry and Kerridge, either the new piano was much more
valuable than the original one, or the original one was sold at a loss: whichever one,
without ademption, “the friend and her husband would have had two pianos”,
seemingly a windfall.1680
12.169 It is far from clear whether a gift of “my car” or “my watch” is or is not adeemed when
the car or watch is replaced. 1681It might depend upon the nature of the description of
the car or watch. Theobald on Wills offers that:
In the absence of any controlling context it is suggested (contrary, perhaps, to one
or other of the cases) that s 24 applies to a gift of “my car” but does not apply to a
gift of “my yellow Renault 12TL car”.1682
12.170 The modern approach to interpretation, which we discuss in detail in Chapter 11, has
a role to play in these cases, and should result in a more careful and nuanced
consideration of what the testator meant in using the word “my” to describe the subject
matter of the gift. The court will use the armchair principle, and where there is
ambiguity, consider direct evidence of the testator’s intention under section 21 of the
Administration of Justice Act 1982, to determine what the testator intended by “my
car”, “my piano”, or “my diamond ring”. 1683If the testator intended a specific car, piano
or diamond ring, which they then replaced before they died, the gift will be adeemed; if
the testator intended to give any car, piano or diamond ring in their possession when
they died, the gift will not be adeemed.
12.171 Therefore, in our view the issue is more a matter of interpretation of the gift, rather
than its ademption, and we suggest that the modern approach to interpretation might
mean that cases would not be decided the same way now as they were in the past.
And, as we explain in more detail in relation to gifts of homes at paragraph 12.174 and
following below, where the gift as drafted in the will did not reflect the testator’s
intentions, our policy in Recommendation 26 to expand the doctrine of rectification
may also ensure that gifts of particular property do not fail by ademption where the
testator intended to give whatever property they owned matching the description at
the time of their death.
12.172 We therefore do not think that law reform on this point is necessary.
12.173 We do not think law reform is desirable to save gifts from ademption where the
property was removed from the testator’s estate during a specified period before they
died. As we explained at paragraph 12.150 above, we think a line must be drawn at
the testator’s death. If the property is sold, lost or destroyed before the testator died,
we think ademption should apply. While it might seem arbitrary and unfair, particularly
in cases where the property ceased to be part of the testator’s estate very soon before
their death, a line must be drawn somewhere. To change that point from the testator’s
death with respect to ademption would seem to alter in substance section 24 of the
Wills Act 1837, which says that the will speaks from the testator’s death with respect
to their estate. We do not think such a significant reform would be warranted or
principled.
12.174 We similarly do not think the suggestions by the Law Society and Christopher Jessel
necessitate reform to the doctrine of ademption. In both cases, we think that
Recommendation 26, to expand the doctrine of rectification, more coherently
addresses these concerns.
12.175 The Law Society suggested that a presumption should arise that a gift of the
testator’s home means a gift of the testator’s home at the time of their death.
Christopher Jessel similarly suggested that the “court be given a power to rewrite” a
gift of the testator’s home where the testator in their will identified a particular home
(by its address) but then purchased a new home.
12.176 We do not think a recommendation along these lines in relation to specific gifts of
homes is necessary. The modern approach to interpretation may apply in some cases
to ensure that the gift is interpreted in line with the testator’s intentions, particularly
where the property is more generically defined, such as by the description “my house”.
Where a testator more precisely described the property, such that it could not be
interpreted to mean any other home, the doctrine of rectification, if expanded in line
with Recommendation 26, will further ensure that the testator’s intentions will take
effect. In Recommendation 26, we recommend that section 20 of the Administration of
Justice Act 1982 should be extended to allow a will to be rectified where the will fails
to achieve the testator’s intentions because the words in the will, when interpreted, do
not have the meaning or effect intended by the testator. This policy would allow
drafting errors to be rectified, rather than only clerical errors or errors due to the will
drafter’s failure to understand the testator’s instructions. Where the testator intended
to give to the beneficiary their home at the time of their death, rather than the specific
property they identified in their will, but the way the gift in the will was drafted does not
achieve this result, the court will be able to rectify the will, regardless of the language
the testator used in the will.
12.177 We think this is preferable to creating a presumption that by making a gift of a
particular type of property, all testators intend the same thing. We think the rules of
interpretation and rectification are better suited to addressing this issue than creating
presumptions in relation to the doctrine of ademption, as ademption is invariably a
blunter instrument.
12.178 One consultee suggested that where a testator, after making a specific gift of
property, uses that property as security (including for a guarantee for a third party), the
gift should not be adeemed by the lender calling in the security, if the testator no
longer has capacity to make a new will. Although we appreciate that this situation
could cause unfairness, we think it is difficult to create a specific rule for this case:
essentially, the issue is that property is no longer in the testator’s estate, but the
testator is unable to make a will. There is already a mechanism to resolve this issue: a
statutory will. If a gift is adeemed, a statutory will can be applied for, to ensure the
testator’s intentions can be applied to their changed circumstances.
12.179 In the Consultation Paper, we suggested that the various instances we identified
where ademption causes problems could be seen as illustrations of wider issues.1684
Although we were wary of recommending reform along these broader lines, we asked
two consultation questions to solicit consultees’ views.
12.180 We thought that one wider issue could be the operation of ademption where the
change or removal of the property from the testator’s estate was brought about by an
event outside the control of the testator. In particular, we considered the
circumstances where the property has been destroyed by flood or fire, lost due to
theft, or expropriated by Government. We wondered whether in these cases the
beneficiary of any specific gift should receive its cash value instead.1685
12.181 However, we were cautious about recommending wider reform along these lines, as
we did not think that it could be said that in all of these circumstances the testator
would have intended the beneficiary to receive the cash value of the property.1686 We
invited consultees’ views about creating a general exception to ademption for cases
when the property was not in the testator’s estate due to an event beyond their
control.1687
12.182 Some consultees were generally in favour of a general exception to ademption to
apply where the property is not in the testator’s estate due to an event beyond their
control. They suggested that the idea had merit or would avoid unnecessary
unfairness. The Chancery Bar Association said that such an exception could justifiably
apply to actions by donees under an LPA, as well as by other attorneys, and where
property is subject to compulsory purchase. The University of Law Birmingham
thought a broader rule would be more principled than piecemeal rules.
12.183 Other consultees were generally opposed to such a general exception. They mainly
argued that this general exception to ademption would not necessarily reflect the
testator’s intentions.
12.184 Some consultees said that specific gifts are usually made for sentimental or personal
rather than financial reasons: the testator wanted the beneficiary to have a specific,
personal item, and it could not be assumed that they wanted the beneficiary to have
its cash value instead. Some consultees did not think that it could be assumed that the
testator wanted the specific beneficiary to benefit to the detriment of the pecuniary
beneficiaries. These consultees worried that a general exception could result in
unfairness.
12.185 Some thought that the key issue is not whether the testator was involved in the
change or loss of their property, but whether the testator had an opportunity to update
their will. That the testator could have updated their will, but did not, suggests that
they did not intend for the beneficiary to receive anything to replace the gift. These
consultees often thought a general exception might be justifiable, or more justifiable,
where the testator had no knowledge of the change or loss or no opportunity to make
a new will (due to timing or a lack of testamentary capacity). One consultee1688
commented, for example, that “it should make no difference if the testator breaks say
a vase or someone else does”.
12.186 Consultees also raised concerns about defining events “beyond the control of the
testator”, evidencing them years later, and then valuing property no longer in the
testator’s estate.
12.187 Richard Wallington did not think reform to address every situation was possible:
There is a limit to the amount of remedial action the law can take against the sort of
things that can go wrong as a result of ademption in individual cases. Sometimes
the purpose of a specific gift is so that the beneficiary can have that particular
property and nothing else, sometimes it is intended to give priority to the beneficiary
in receiving property of a particular value. When an event which would cause
ademption occurs, sometimes the testator forgets that this affects his testamentary
dispositions, and sometimes he does not realise that it will cause ademption; on the
other hand sometimes he remembers, or does realise, that it will cause ademption,
but he decides that he does not want to make a substitute gift.
In short, I agree that no further attempts to reform the law of ademption should be
made.
12.188 We do not think it is necessary or desirable to create a broad exception to ademption
that would apply where the property is not within the testator’s estate at their death
because of circumstances outside of their control. We do not think it can fairly be
assumed that even in the majority of these cases that the testator would have wished
the beneficiary of the specific gift to receive the cash value of the property, particularly
if doing so would affect the amount given to the residuary beneficiaries. This
assumption seems particularly hard to justify where the testator could have, but did
not, update their will.
12.189 We therefore are not recommending creating a general exception to ademption to
apply where events outside the testator’s control adeemed the gift.
12.190 In the Consultation Paper, we thought wider reform could address the situation where
ademption applies even where the testator retains an interest in the property at the
time of their death. We cited as an example where, after making their will, the testator
sells the property but grants a mortgage back over the property.1689
12.191 Again, we did not think that wider reform to prevent ademption where the testator
retains a right or interest in the property was justified: where the transaction
completes, the testator could be expected to update their will if they intended the
beneficiary of the specific gift to receive something. We again invited consultees’
views.1690
12.192 Some consultees suggested support for a general exception where the testator
continues to have an interest in the property. Some consultees thought such a rule
would uphold the testator’s intentions.
12.193 Some consultees supported the potential exception in light of specific circumstances
when it might apply. A solicitor 1691said such a rule would save gifts where the testator
had an interest in remainder where the testator had put the asset into a trust. The Bar
Council suggested that generally beneficiaries should receive the insurance proceeds
in cases where a gift has adeemed due to loss or destruction of the item. It thought a
general exception where the testator retains an interest in the property could have this
result, with the insurance proceeds a contractual right the testator has in the property.
12.194 Consultees who were opposed generally argued against further or wider reforms,
saying they were not necessary or that a clear case had not be made for them. Some
consultees again noted that, if the testator did not want the gift to fail after disposing of
the property, they should have updated their will; where the testator did not update
their will, it would not be safe to assume they did not want the gift to be adeemed. The
University of Law Birmingham argued that the sale of the asset “provides clear
evidence that there has been a change of mind/alteration in intention to give that
particular property”. Professor D G Barnsley also questioned how often such cases
could arise in practice, identifying only sales and mortgage backs and sales and
leasebacks as possibilities; however, the interest the testator retained in these cases
is mainly a financial or a short-term interest in the property. STEP and an independent
trust consultant1692 also did not support an exception which would give the beneficiary
the right to a financial arrangement.
12.195 Richard Wallington repeated his remark that “there is a limit to the amount of
remedial action the law can take against the sort of things that can go wrong as a
result of ademption in individual cases”.
12.196 We do not recommend reform to create a general exception to ademption where the
testator disposes of property but retains or acquires another interest in it, such as a
mortgage. We do not think there is sufficient evidence that such an exception would
reflect the testator’s intentions or is necessary to address an actual problem in
practice.
12.197 The testator has disposed of their ownership interest in the property. Although the
testator has retained an interest in the property, the substance of their interest has
fundamentally changed: a mortgage is not an ownership interest, but a security
interest. We think it would be difficult to say that the testator, having sold the
ownership interest in their property and taken a charge over it, would have intended
that the security interest they retain in the property should be passed to the
beneficiary of the specific gift.1693
12.198 However, if at the time of making the will they intended to give whatever interest they
had in the property, the modern approach to interpretation or, under Recommendation
26, the expanded doctrine of rectification, may resolve the issue.
13.1 A key characteristic of wills is that they are revocable until the testator’s death. In the
law of England and Wales, there are four methods of revocation:
(1) by another will or codicil;
(2) by written intention to revoke;
(3) by destruction; and
(4) by operation of law, on marriage or formation of a civil partnership.1694
13.2 Revocation (other than by operation of law) can be absolute or conditional, depending
on the testator’s intention.1695 In addition, a will can be revoked in whole or in part.
13.3 In the Consultation Paper, we first considered revocation by another will, written
intention, or destruction. We did not think that there were any problems with the law in
relation to these methods of revocation. Consultation responses confirmed this view.
Accordingly, we do not recommend reform in relation to revocation by another will,
written intention or destruction.
13.4 We then considered revocation by operation of law, on marriage or formation of a civil
partnership. We looked at the rule that a marriage or civil partnership revokes a will
both in the 2017 Consultation Paper and in the 2023 Supplementary Consultation
Paper. Our main reason for revisiting the topic in 2023 was concern about predatory
marriage, by which we mean where a person marries someone, often someone who is
elderly or who lacks the mental capacity to marry, as a form of financial abuse.
Concerns about predatory marriage increased between 2017 and 2023 and were
directly raised with us during our project on weddings law. With the benefit of
consultees’ more recent views on the revocation rule, we recommend that the rule
should be abolished.
13.5 Section 20 of the Wills Act 1837 provides for three methods by which a testator may
revoke their will.
13.6 First, a testator may revoke their will in whole or in part by subsequently making
another will. The later will must be formally and substantively valid, meaning that it
complies with the formality requirements for making a will and that the testator has
testamentary capacity, knows and approves the contents of the will, and is not subject
to undue influence.
13.7 Revocation by a later will may be express or implied.
(1) Revocation is express when the terms of the subsequent will state that any
previous testamentary dispositions are revoked by the new will. Wills commonly
contain such clauses, which generally revoke all previous wills and codicils.
However, whether a revocation clause does operate to revoke all previous wills
and codicils is a question of interpretation.3 The common description of a will as
“the last will and testament” of the testator is insufficient to expressly revoke a
previous will.4
(2) Revocation is implied when the testator makes a subsequent will that is
inconsistent with or repetitive of their previous will. A new will that is wholly
inconsistent with or repetitive of a previous will operates to revoke the previous
will in its entirety; if the new will is only partially inconsistent with or repetitive of
the previous will, it does not revoke the parts unaffected by the inconsistency or
repetition.5
13.8 Secondly, a testator may revoke their will by making a written declaration of their
intention to revoke it, without making a new will. As with revocation by a later will, the
testator’s written intention must comply with the formality and other requirements to
make a valid will.6
13.9 There are no further requirements about the form or content of the written intention.
Often, the written intention will be in a letter. For example, in Re Spracklan’s Estate,7
a letter from the testator to the bank with custody of her will which instructed the
manager to “destroy the will already made out” was a valid written intention to revoke
as the letter was signed and properly witnessed in accordance with the Wills Act 1837.
13.10 Lastly, under section 20 a testator can revoke their will by “burning, tearing, or
otherwise destroying” the will. Revocation by destruction contains two requirements:
(1) an act of destruction by the testator or someone directed by the testator and in
their presence; and
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 7-017.
See eg Re Wayland [1951] 2 All ER 1041.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 7-018; B
Sloan, Borkowski’s Law of Succession (4th ed 2020) pp 173 to 174. See eg Cutto v Gilbert (1854) 9 Moo PC
131.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 7-025.
See also B Sloan, Borkowski’s Law of Succession (4th ed 2020) pp 175 to 176, which explains that this rule
applies with less force to a codicil that follows a will, because a codicil is seen as additional or supplemental
to the earlier will.
See B Sloan, Borkowski’s Law of Succession (4th ed 2020) pp 177 to 178.
(2) an intention by the testator to revoke the will.
Both requirements must be met for each document intended to be revoked: revocation
of a will by destruction will not by itself revoke a codicil to the will.1696 And a testator must
have testamentary capacity in order to revoke a will by destruction.1697
13.11 There are many cases considering what amounts to an effective act of destruction.
Actual destruction or obliteration is required, not symbolic destruction or obliteration.
This is true of tearing or burning as well: it must amount to destruction. For example,
damaging the envelope in which the will is kept is insufficient, as is drawing a line
through a will or writing on a will (including writing “cancelled”); but the testator
obliterating their signature on the will is sufficient, where coupled with the required
intention to revoke.1698
13.12 As we explained in the Consultation Paper, the case law suggests that the key to
effective destruction is that the will itself (or a part of it essential to its validity) is no
longer legible. Moreover, the testator must actually complete their intended act of
destruction: the testator burning only part of a will where they intended to burn all of it
is insufficient for the will to be revoked.1699
13.13 There is also case law considering how the testator’s intention to revoke can be
evidenced. There are three ways intention can be shown:
(1) by evidence of the testator having expressed an intention to revoke;
(2) by circumstances from which the testator’s intention to revoke can be inferred;
and
(3) by the condition of the will after the alleged destruction had taken place.1700
Proving intention is important, as a will that is accidentally destroyed is not revoked.1701
13.14 Proving intention to revoke is often evidentially difficult; therefore, two presumptions
are key to the operation of the law on revocation by destruction. First, intention to
revoke will be presumed where the will is found in the testator’s custody and it is
sufficiently damaged or mutilated.1702 Secondly, intention to revoke, together with
destruction by the testator, will be presumed where the will was in the testator’s
custody but is missing at the time of their death. In the case of a missing will, the
strength of the presumption will depend on how secure the testator kept the will.1703
Both presumptions can be rebutted on the balance of probabilities.
13.15 At the time of the Consultation Paper, we were unaware of any significant problems
with the operation of the law on revocation by a subsequent will or a written intention
to revoke. We noted that equivalent provisions exist in many other jurisdictions.1704
13.16 In relation to revocation by destruction, we commented that many reported cases are
Victorian, leading us to think that revocation by destruction may now be rare. We also
noted that equivalent provision for revocation by destruction exists in many other
jurisdictions. We moreover thought that the law is sufficiently clear and practicable.1705
13.17 We therefore provisionally proposed that reform in relation to these three forms of
revocation is not necessary.1706
13.18 However, just as a person can intend to make a will but fail to comply with the
formalities, so too can a person intend to revoke a will but fail to comply with the
formalities. We therefore explained our view that revocation should fall within the
scope of our proposed dispensing power.1707
13.19 The very substantial majority of consultees who responded to this provisional proposal
agreed that reform is not required, with the remainder roughly divided between those
disagreeing and those expressing other views.1708
13.20 Consultees who thought that reform is not necessary included the Bar Council, CILEx,
solicitors’ firms and some solicitors. Among their reasons were that revocation in
these forms are acts of testamentary intention, so should be respected, and that these
rules on revocation do not cause problems in practice. LawSkills Ltd and Irwin Mitchell
LLP 1709suggested that revocation by destruction is rare. A few consultees also made
positive comments about the role that a dispensing power could play to resolve
complex or difficult cases.
13.21 The consultees who thought that reform is necessary included STEP, the Law
Society, HMCTS and some practitioners. Their concerns centred on revocation by
destruction.
13.22 HMCTS and the District Probate Registrars thought that revocation by destruction was
insufficiently protective of testamentary freedom, arguing that revocation should only
be possible by another will or written intention to revoke. Some consultees similarly
thought that it was nonsensical that fewer formalities are required to revoke a will than
to make one, including the fact that witnesses are not required for a will to be validly
revoked by destruction.
13.23 Some consultees (including the Law Society and STEP) thought that the law in
relation to revocation by destruction is complicated and frequently misunderstood,
even among solicitors. Their concerns focused on the operation of the presumptions.
Some consultees identified the presumption which arises where the will is missing as
particularly giving rise to problems.
13.24 For example, STEP and an independent trust consultant 1710observed that the
presumption of revocation can be rebutted in several ways, for example where the
testator lacked capacity at some point since the will was traced into their possession.
In this case, there is a presumption that the testator destroyed the will when they
lacked capacity, meaning that the destruction will not be effective to revoke the will,
but this presumption can again be rebutted. These consultees noted that this latter
presumption is not well known. They suggested guidance on the presumptions in a
code of practice. Withers LLP1711 said the will should remain valid “where there is no
evidence either way” that the testator intended to revoke the will, suggesting that
where the will is missing from the testator’s possession there should not be a
presumption of revocation.
13.25 Three consultees, including STEP and the Law Society, thought that the potential
introduction of electronic wills was a reason to reform the rules on revocation by
destruction.
13.26 Two consultees suggested that we should review the law governing the revival of wills
alongside the rules governing revocation. Further, Christopher Jessel 1712said that we
should clarify that an exercise of a power of appointment in a will can revoke an earlier
deed of appointment unless the deed expressly states that it is irrevocable.
13.27 Two consultees raised the doctrine of dependent relative revocation (a doctrine
discussed at paragraph 13.42 and following below), with one suggesting it should be
codified in legislation.
13.28 There have been a number of published cases on revocation since the Consultation
Paper. There is no clear development in the law, other than the detailed consideration
and commentary on the approach to the operation of the presumptions that apply in
the context of revocation by destruction in Jones v Tracey.1713
13.29 There have been two cases on revocation by another will or codicil, both dealing with
the question of whether a will with an express revocation clause operates to revoke a
pre-existing will dealing with property in another jurisdiction. In both cases the newer
wills operated to revoke the prior wills, due to the express and unambiguous
revocation clauses the testators used, even where in one case that left the testator
intestate in respect of his English property.1714
13.30 Since the Consultation Paper, there has also been a case on implied revocation (in
this case, by a will of an earlier exercise of a power of appointment by deed). 1715This
case resolves the issue raised by Christopher Jessel, as it makes clear that a power
of appointment exercised by a deed can be revoked by a later made will.1716
13.31 There have been several cases on revocation by destruction since 2017.1717 The
number of cases suggests that revocation by destruction might not be as rare as we
thought in 2017.1718 However, the cases suggest that, even with the operation of the
presumptions, it is difficult to establish revocation by destruction. It has only been
successfully argued in two cases: one where the testator had asked her son to shred
her old will after making a new will; 1719and another where the testator tore up her
existing will with the assistance of her solicitor but then lost capacity due to delirium so
was unable to make a new will.1720 The outcomes in these cases suggests that while
allegations of revocation by destruction are not rare, given that the presumption of
revocation will arise where a will is missing from the testator’s custody, actual cases of
revocation by destruction are.1721
13.32 In Jones v Tracey, 1722Master Marsh considered the operation of the presumption which
applies when a will in the custody of the testator is missing at death. He outlined the
“established” or “conventional” approach, deriving from the original case on the
presumption, Welch v Phillips.1723
(1) Was the original will in the custody of the testator?
(2) Were adequate steps taken to locate the original will?
(3) What was the character of the testator’s custody of the will?
(4) What were the testator’s testamentary intentions when they made the will?
(5) Did the testator’s intentions change between the time they made the will and
died?1724
13.33 Master Marsh expressed dissatisfaction with this approach. He described the two-
stage approach, of raising then (potentially) rebutting the presumption, as artificial
because it requires the court first to make “findings about part of the evidence in order
to establish the weight of the presumption” and then second to consider “all the
evidence, including the evidence already considered, to decide whether the
presumption has been discharged”.1725
13.34 Reviewing the more recent case law applying the presumptions, Master Marsh
explained that the presumptions are not to be treated as strict rules but as inferences
that can be drawn from all the evidence in the case. In relation to the presumption in
the case of a missing will, the court must consider what is the most probable
explanation for the will’s absence. 1726He concluded that “it may well be that as the law
develops the days of the Welch v Phillips presumption are numbered”.1727
13.35 We continue to think that there is no need to reform the law in relation to revocation by
a later will or codicil or by a written intention to revoke. Consultees agreed with this
view, primarily for the reasons we gave in the Consultation Paper. Although some
consultees were in favour of reforming the law about revocation by destruction, we
continue to think that reform would not be necessary or helpful, as we explain below.
13.36 Revocation by destruction, how it can be proved, and the operation of the many
presumptions in relation to it, is more complicated than the other ways in which a
testator can revoke their will. However, it seems to us that this complication has been
developed to deal sensibly with the difficulties in establishing revocation by destruction
after the testator has died in the wide range of possible circumstances.
13.37 The judgment in Jones v Tracey 1728suggests some development in relation to the
operation of the presumptions in this area, and could be seen as evidence of some
lack of clarity in terms of how they apply. However, we think it is reasonably clear that
the presumptions are not strict rules of law but are inferences for the court to make in
certain circumstances, operating to “encourag[e] the court to consider what is the
most likely on the facts of each case”. 1729We moreover think that the two main
presumptions - that the testator has destroyed the will with an intention to revoke it
where the will is found destroyed in their custody or where the will was in their custody
but is missing at the time of their death - are reasonable inferences to make where
the law allows for revocation by destruction. The strength of the presumption about a
missing will depending on the security of the custody, and the role played by
testamentary incapacity in rebutting or preventing the application of the presumptions,
are also reasonable and self-explanatory.
13.38 Moreover, while the presumptions aid in determining which party bears the burden of
proof, the totality of the evidence will generally establish what is most likely to have
occurred. The recent case law suggests that, despite the presumptions, courts will not
lightly set aside a valid will in the testator’s custody simply because it cannot be found
after they died.
13.39 It is therefore not clear to us what could be done to provide clarity in statute in relation
to the operation of the presumptions. We are also not sure that a code of practice
would assist, given that the operation of the presumptions in any particular case is
very specific to the facts.
13.40 In addition, we do not think that we should recommend abolishing the ability of
testators to revoke a will by destruction with intention to revoke. We did not consult on
changing the law to abolish revocation by destruction. We think that doing so, without
strong evidence of problems, would impose a limit on testamentary freedom,
particularly due to the intuitive nature of revocation by destruction. It would be a
drastic response to the concerns of consultees who thought that the doctrine was
complicated and not well known.
13.41 We also believe that revocation by destruction should apply to electronic wills. Just as
we think that the destroying a paper will is an intuitive way to revoke it, we think
deleting the authoritative copy of an electronic will is also an intuitive way to revoke an
electronic will, and one which the law should recognise. We consider this point in
detail in Chapter 8.
13.42 Two consultees were slightly critical that our discussion in the Consultation Paper did
not include dependent relative revocation.
13.43 Dependent relative revocation is a type of conditional revocation.1730 Conditional
revocation occurs where the testator’s intention to revoke is conditional on a matter
being true or an event occurring: the testator’s will is revoked if the condition is
fulfilled, or if an event occurs. However, if the condition is not fulfilled or the event
does not happen, the testator’s will remains effective. Dependent relative revocation is
a form of conditional revocation where the testator revokes their will contingent on
another will being valid.1731
13.44 One consultee suggested that there were no changes necessary to the doctrine of
dependent relative revocation. The other suggested the doctrine should be put into
legislation so that it was more widely recognised.
13.45 Another argument in favour of codifying conditional revocation more broadly was
made in 1955 by Francis Newark. He argued that conditional revocation undermines
the purpose of the Wills Act 1837, which was to ensure certainty in the law of wills and
clearly specify the circumstances in which wills can be revoked.1732 As conditional
revocation is a common law doctrine and acts as a gloss on the statute, it is difficult to
determine with certainty whether revocation will occur.
13.46 It is true that the possibility that revocation may be conditional is not apparent from the
face of the Wills Act 1837, and acts as a gloss to it. But we do not think this alone is a
good reason to codify it. The Wills Act placed in statute some of the law governing
wills, in most cases where there was a change to the law, whether that law was
previously in legislation or derived from the common law. At the time the Wills Act was
enacted, and now, wills law is a combination of statutory and common law. For
example, the formalities for making a valid will are in the Wills Act 1837, but the
requirement for testamentary capacity and knowledge and approval are not. Most of
the principles and presumptions about the interpretation of wills are also not in the
Wills Act but are governed by the common law. There are other glosses to the Wills
Act: indeed, a will itself may be conditional on an event happening (such as the
testator dying during an upcoming journey),1733 something that is also not apparent from
the Wills Act.
13.47 The draft Bill, which enacts our recommendations, places more aspects of wills law on
a legislative footing. It does so where it is necessary to modify those elements of the
law or where making statutory provision is preferable in light of other provision being
made by the Bill. But the Bill does not generally codify wills law. Codifying all of wills
law within a single statute would be an enormous task, because the common law
governing wills is a large and nuanced body of law. Seeking to put it on a statutory
footing would risk unintentionally changing wills law and removing some of the nuance
which allows courts to arrive at a just and sensible result in hard cases.
13.48 We do not, therefore, think there is a sufficiently good reason to codify the possibility
that revocation may be conditional.
13.49 Despite support for doing so by some consultees, we do not think that we should
attempt to define what amounts to an act of destruction for the purpose of revocation
by destruction. We think this point is better left to the common law, with courts
considering the facts of a case to determine if the damage to the will is sufficient for
the will to be destroyed. Our draft Bill for a new Wills Act therefore provides, in clause
8(1), that a will can be revoked by destruction without defining or prescribing what is
required for a will to be destroyed.
13.50 However, our policy to introduce a dispensing power may apply in some cases where
the acts of the testator (or someone at their direction) are insufficient to amount to
destruction, but where the testator nevertheless intended to revoke their will.
13.51 In Chapter 6, we recommend that a dispensing power should be introduced, which will
allow the court to dispense with the formalities required to make a valid will, where a
document expresses the testamentary intentions of the deceased.1734 The power will
apply to documents which revoke, revive, or amend a will.1735 Accordingly, if a testator
intended to revoke their will by making a new will or by a written intention to revoke,
but the will or written intention failed to comply with the formality requirements for a
valid will, the revocation could nevertheless be effective if the court determines that
the record expresses the testator’s testamentary intentions.
13.52 Acts of destruction could not, by way of a dispensing power, be deemed sufficient to
amount to destruction for the purpose of revocation. However, the dispensing power
could be applied to acts insufficient to amount to destruction that could be said to
create a record. For example, the testator writing “cancelled” on an existing will or
striking out the text of an existing will would seem to constitute records. If the court
was satisfied that such a record expressed the testator’s intentions, the operation of
the dispensing power would have the effect of revoking the will.
13.53 Under the Wills Act 1837, a person’s will is automatically revoked if they get married
or form a civil partnership, by virtue of section 18 (in the case of a marriage) and
section 18B (in the case of a civil partnership). This rule is unique. As section 19 of the
Wills Act 1837 makes clear, no other change in the testator’s circumstances functions
to revoke their will.1736
13.54 There are narrow exceptions to this revocation rule.1737 The main exception is that a
marriage or civil partnership to a specific person will not revoke a will1738 where the
testator made the will in contemplation of that marriage or civil partnership. For this
exception to apply, it must be clear from the drafting of the will that it should not be
revoked. 1739A subsequent marriage or civil partnership will also not revoke an exercise
of a power of appointment in certain circumstances.1740
13.55 When a will is revoked by a marriage or civil partnership, unless the person makes a
new will, the intestacy rules will apply on their death. Under the intestacy rules, the
person’s surviving spouse or civil partner will receive the majority of their estate, if not
their entire estate. Where the person dies without any children (or other direct
descendants), the spouse or civil partner receives the entire estate; where the person
has children (or other direct descendants), the spouse or civil partner receives a fixed
net sum (currently £322,000) and half of any remainder, with the other half going to
the deceased’s children (or other direct descendants). 1741Further, on intestacy, the
surviving spouse or civil partner will have the authority to make funeral arrangements
and decide whether the person’s body should be buried or cremated, and where the
remains should be interred.1742
13.56 In the 2017 Consultation Paper, we considered arguments for and against reform of
the revocation rule.1743 Because we thought the issue was finely balanced, we asked
consultees an open question: we asked about public awareness of the rule, and
whether consultees thought the rule should be retained.1744 We also asked whether, if
the rule is retained, the main exception should be liberalised, so that a person could
clearly state in their will that they do not wish for it to be revoked on any subsequent
marriage.1745
13.57 We also specifically considered the situation where a person has capacity to marry but
not to make a will. There is no single test for capacity under the law, and the test for
capacity to marry has a lower threshold than the test for capacity to make a will.1746 As
a result, a person may have capacity to marry, and in doing so revoke their will, but
lack capacity to make a new will. In some respects, however, the test for capacity to
marry is irrelevant in this context, as even where a person lacks capacity to marry but
nevertheless does so, the effect is the same: the marriage - a voidable marriage in
this case1747 - revokes any pre-existing will in the same way as a valid marriage.1748 In
either situation, unless a statutory will is obtained for the person, the intestacy
provisions will apply when they die.1749
13.58 Accordingly, in 2017 we provisionally proposed that if the revocation rule is retained, a
will should not be revoked where, at the time of the marriage, the testator lacked
testamentary capacity and was unlikely to recover that capacity.1750
13.59 In their responses to the 2017 Consultation Paper, only a small percentage of
consultees were in favour of abolition, with the majority in favour of retaining the
revocation rule. 1751This support for the rule was in spite of the fact that a substantial
majority of consultees 1752thought either that public awareness of the rule was low or
that methods should be used to increase public awareness if the rule were retained.
Very few1753 said that they thought that the public was generally aware of the rule.
13.60 The majority of consultees were also not in favour of enabling testators to prescribe
that their will (or particular dispositions in it) should not be revoked by any future
uncontemplated marriage.1754 They did so for similar reasons that we raised in the
Consultation Paper: although this extension of the current exception would arguably
increase testamentary freedom, it would require people to make a decision in a
vacuum as to the consequences their will would ultimately have. Consultees were also
concerned that such a reform would generally increase the difficulty and complexity of
will-making.
13.61 However, a majority of consultees did agree with our provisional proposal that a
marriage entered into where the testator lacked testamentary capacity, and was
unlikely to recover that capacity, should not revoke a will.1755
13.62 At the time of the Consultation Paper, awareness of predatory marriages seemed low.
Our provisional proposal to make an exception for cases where the person marrying,
or entering into a civil partnership, lacked testamentary capacity was intended to
provide protection to older, vulnerable testators. But our understanding of the risk of
this situation was limited in 2017.
13.63 Concerns about predatory marriage were raised with us throughout our weddings
project, which ran from 2019 to 2022. During that time, the issue also attracted
interest in the press and Parliament.1756 As we explained in our final report, Celebrating
Marriage: A New Weddings Law:
Concerns have centred around circumstances where elderly people, including those
with dementia, have married without the knowledge of their family. These weddings
have, understandably, given rise to significant concerns of elder abuse, including
financial abuse.1757
Much of the attention to the issue of predatory marriages can be attributed to the work
of Daphne Franks and her campaign Predatory Marriage UK, which she started after
her experience with it in respect of her mother.1758
13.64 Although most often raised in relation to marriage, predatory civil partnerships are also
possible.1759
13.65 As we explain at paragraph 13.4 above, our understanding of predatory marriage is
one where a person marries someone, often someone who is elderly or who lacks the
mental capacity to marry, as a form of financial abuse. The main characteristic of a
predatory marriage is that a vulnerable person is intentionally being exploited by
another person for their own profit. A predatory marriage can be a forced marriage,
meaning that the vulnerable person lacked capacity to marry or was coerced into
marrying. But it might not be a forced marriage: the vulnerable person might have had
capacity and not have been coerced, but nevertheless the other party manipulated
them into marriage with the intention of being able to inherit from them or otherwise
commit financial abuse against them.
13.66 It was within the scope of our weddings project to make recommendations to improve
weddings law’s safeguards to prevent forced marriages from taking place, which
includes a marriage where a person lacks capacity. But it was not within the scope of
the weddings project to make recommendations about the legal consequences of a
marriage or civil partnership, including on a person’s will.
13.67 However, the effect of a marriage or civil partnership on a will falls squarely within the
wills project. Therefore, on returning to the project in late 2022, we decided to re-
consult on the issue. We used the Supplementary Consultation Paper as an
opportunity to gather evidence of the incidence of predatory marriage, and to see
whether the issue of predatory marriage had affected consultees’ views about the rule
that a marriage or civil partnership revokes a person’s pre-existing will.
13.68 In the Supplementary Consultation Paper, we explained that we no longer thought
that concerns with the revocation rule could be resolved by expanding the existing
exception, so that testators could, in their will, opt out of the rule in relation to
uncontemplated marriages or civil partnerships. We did not think this approach would
address either the issue of predatory marriages or the general lack of public
awareness of the rule. We moreover did not think that protection from predatory
marriage should depend on a person, in their will, anticipating the possibility of a
future marriage or civil partnership.1760
13.69 With the benefit of our work on weddings law, we agreed with Predatory Marriage UK
and other consultees that the new exception to the rule that we proposed in the 2017
Consultation Paper would not be workable in practice. This exception would apply
when a person lacked testamentary capacity at the time of their marriage or civil
partnership. As we explained in the Supplementary Consultation Paper, no one
involved in the weddings process is considering whether the parties getting married
have capacity to make a will. We thought it would be impractical to expect that every
person’s testamentary capacity would be assessed when they get married or enter a
civil partnership, and that notes or other evidence of that assessment would be made
and kept.
13.70 Capacity to make a will is a different legal test than capacity to marry or enter a civil
partnership, requiring the person to be able to understand different things. It would be
unrealistic to expect that the registration officer, or others involved in the preliminaries
or wedding/civil partnership process, would have the contextual information about the
person’s estate and relationships necessary to form a view of the person’s capacity to
make a will. More fundamentally, we think that the primary focus for those involved in
the weddings process should be on ensuring that the parties have capacity to marry or
form a civil partnership, given the very real concerns about forced marriages.1761
13.71 Therefore, our view in the Supplementary Consultation Paper was that the question
for us is a binary one: should the revocation rule be retained or abolished?
13.72 We noted continuing concerns that the rule might be out of step with modern societal
norms. The revocation rule was enacted in a social and legal context very different
from today’s. In the light of the importance of testamentary freedom in the law, and the
fact that a person’s will is not automatically revoked in any other circumstance, we
were not sure that marriage and civil partnership warrant such singular treatment.
Together with the general lack of public awareness of the rule, we wondered whether
there could be good reasons for reform.1762
13.73 We also considered the apparent rise in predatory marriages, the devasting impact
they can have, and the possibility that the rule is acting as an incentive for this form of
financial abuse.1763
13.74 We also assessed the rule in the light of the operation of family provision claims under
the Inheritance (Provision for Family and Dependants) Act 1975 (the “1975 Act”). The
1975 Act allows people in specific relationships to the deceased person to apply to the
court on the grounds that the deceased person’s will and/or the operation of the
intestacy rules does not make reasonable financial provision for them.1764 Surviving
spouses and civil partners benefit from favourable treatment under the 1975 Act as
compared to other types of potential claimant. Surviving spouses and civil partners
can apply for such provision that would be reasonable in the circumstances for them
to receive, a standard which includes consideration of the provision that might have
been expected on divorce. All other applicants may only apply for such financial
provision as is reasonable for their maintenance.1765 In effect, spouses and civil
partners can apply for a “share of the family assets”, whereas adult children (and
others) “cannot apply for a share of the estate simply because of the relationship”.
Instead, they must demonstrate need. 1766Accordingly, adult children attempting a family
provision claim under the 1975 Act are likely to meet with success only if they were
financially dependent on the parent or are otherwise unable to support themselves,
and moreover may need to show a moral claim. 1767The same will not be true of
surviving spouses and civil partners.
13.75 We therefore explained that the current law can be seen as giving double protection to
surviving spouses and civil partners: when taken together with the effect of the
intestacy rules, they benefit from the rule that marriage or civil partnership revokes a
will; and moreover they are more likely to succeed than other potential claimants in a
family provision claim under the 1975 Act. But the current law provides limited or no
protection to adult children and other beneficiaries under pre-existing wills. In the
circumstances where the testator marries or forms a civil partnership and does not
remake their will, adult children and other beneficiaries are unlikely to be able to make
a successful claim for family provision.
13.76 On the other hand, we also agreed that abolishing the rule could result in an increase
in claims under the 1975 Act, particularly from surviving spouses and civil partners.1768
13.77 Rather than making any proposals for reform, we asked consultees in the
Supplementary Consultation Paper about the prevalence of predatory marriage 1769and
their views on whether the revocation rule should be abolished or retained.1770
13.78 The responses we received to the question about the prevalence of predatory
marriage demonstrate that predatory marriage is part of a wider context of financial
abuse, which can take many forms. In our view, while responses do not indicate that
predatory marriage is common, they show that it is far from uncommon. It is far more
widespread than our understanding of it in 2017.
13.79 Some consultees explained why the true number of predatory marriages is unknown.
(1) A few consultees noted that the lack of legal redress means that cases are not
identified. For example, the Law Society “recognised the difficulties” in
establishing the true number of predatory marriages, “since it is not possible to
challenge the validity of a marriage after one party has died”. Kingsley Napley
LLP 1771also noted that the “lack of legal remedy available” makes it difficult.
(2) Predatory Marriage UK referred to there being no prosecutions for forced
marriage, as a result of the lack of “audio or video evidence” taken during the
wedding process. It said the “exact number of cases of predatory marriage is
not known as no official body is collating them, and the term is still unfamiliar to
many”.
(3) Some consultees said that families might be unwilling to come forward. One
member of the public, who thought predatory marriage was common, explained:
Many of the families are unwilling to speak out because they fear the
predator, or feel embarrassed that they were not able to prevent it. Almost all
the cases that have talked to us have kept their stories secret for one or both
reasons.
Daphne Franks, responding on behalf of Predatory Marriage UK, agreed:
Many families do not wish to “go public” about what has happened - they feel
ashamed of being unable to safeguard their relative, totally traumatised about
what has happened (if they went to court, they have invariably lost) and fearful
of negative publicity - it is very easy to be criticised for example on social
media, such as one comment I received after I appeared on “Steph’s Packed
Lunch” (Channel Four) that I am “nothing but an entitled money-grabbing
adult brat”.
(4) Solicitors for the Elderly explained the nuances involved in identifying any
specific case as a predatory marriage:
Whilst predatory marriages clearly do exist, it’s sometimes difficult to pinpoint
what is a predatory marriage - whilst a marriage may appear predatory from
an external point of view, it’s a subjective assessment and a balance needs to
be struck between protecting older and vulnerable people and allowing them
the freedom to make their own decisions where they have capacity to do so.
13.80 Many consultees also commented on their own experience, or lack of experience, with
predatory marriage.
13.81 Some said they had no experience of it, other than hearing about it anecdotally.
These consultees included the Charity Law Association Working Party, Solicitors for
the Elderly, and Newcastle upon Tyne Law Society.
13.82 Other consultees reported direct experience with it.
13.83 Contributors to the Chancery Bar Association’s and Bar Council’s responses, two
Chancery Masters (responding together), five solicitors’ firms, and ten legal
practitioners reported that they have had professional experience of predatory
marriage. For example, Kingsley Napley LLP said its contentious trusts and estates
team receives “enquiries from individuals who suspect that a predatory marriage has
taken place approximately every few months”. In its view, “this is something that is
happening, and is not just a theoretical concern”.
13.84 A solicitor, Karen Shakespeare, gave a detailed account of two cases of attempted
predatory marriage involving her clients:
Approximately five years ago, the firm had an elderly male client whose younger
female partner (of only a few months) arranged a marriage at the local Registry
Office. The client didn’t want to marry her, so he didn’t attend the ceremony. She
then tried to force him to change his Will to leave everything to her, but he had a
heart attack and died in the firm’s reception before signing his new Will. The
coercive nature of the relationship was only revealed after the client’s death. I
believe she saw marriage as an easier option than getting him to change his will.
In 2020, during lockdown, I helped an elderly female client make a new will and kept
it secret from her significantly younger male cohabitee. She told me he had originally
been her lodger, but he was now telling everyone they were a couple and he had
stopped paying for his board. She told me he was very controlling and was trying to
force her into marriage. She said she didn’t want to be with him, but was too scared
of him to ask him to leave her house. She died shortly after making her Will, which
was challenged by her cohabitee. He claimed they were due to marry and were only
prevented from doing so by lockdown. I believe this was a case of attempted
predatory marriage.
13.85 Members of the public also told us of their own experiences with predatory marriage,
often referring to abuse suffered by their elderly parents. For example, one consultee,
responding anonymously, said that her seriously ill father “married in secret five weeks
before he died”, with the result that the new wife “got everything”. Another consultee
described the experience of their elderly father who lived in sheltered accommodation
and met a “church befriender of the elderly”, who hastily arranged a marriage between
them. After the church service, her father “went home alone ... unaware that he had
married anyone”. The predator sold approximately £400,000 worth of his assets and
removed him from his sheltered accommodation. The family found him in a psychiatric
unit. Another consultee described the experience of her father who suffered from
vascular dementia and Parkinson’s and, in his late 80s, married a suspected predator
who had “bullied [him] for years”. Another consultee reported that her elderly father, at
around the age of 75, was “targeted by a neighbour 24 years his junior”. When her
father was 80, the woman successfully encouraged him to move out of his home and
two years later they were married.
13.86 Predatory Marriage UK told us about how their work to raise awareness of predatory
marriage has caused other families to contact them with their own stories:
As soon as we set up a website back in 2016 (www.predatorymarriage.uk) we
started hearing from the families of other cases and I have since heard from such
family members at the rate of about two a month. They do seem to follow a pattern -
the predator moves in on the elderly person very quickly, is at first very friendly to
family members and then gradually becomes colder and more hostile, isolating the
person from the family, and often marrying them in secret and keeping the marriage
secret after death so that the family are unable to do anything about the revoked will.
Several relatives have suggested that there might be a “how to do it” guide on the
dark web as the patterns of behaviour are so similar.
Radio Four’s “File on Four” contacted 176 solicitors about predatory marriage. The
solicitors reported that relatives of 98 possible cases had come to them in 2020 -
almost two a week.
13.87 Some consultees noted reported cases where there were allegations of predatory
marriage, 1772with some also citing court cases in Canada and Australia. Kimberly A
Whaley, an academic and solicitor in Canada, expressed her view that:
Predatory marriages are on the rise world-wide, irrespective of country, ethnicity, or
culture. There is a pattern that has emerged that makes these types of unions easier
to spot. Such unions are usually characterised by one spouse who is significantly
advanced in age, and, because of a number of potentially complicating factors,
which range from the loneliness consequent upon losing a long-term spouse, illness,
mental incapacity, or dependency, the person is vulnerable, and thus more
susceptible to exploitation. These unions are frequently clandestine - with sudden or
gradual isolation, alienation and sequestering from friends, family and loved ones,
thus being a tell-tale red flag that the relationship is not as it appears.
13.88 Other consultees also thought the incidence of predatory marriage was increasing.
For example, an NHS employee who works within adult safeguarding reported that
predatory marriage was a “growing area of concern that I have had to advise
practitioners on across the health sector within the county that I work in”. 1773In
response to a survey conducted by STEP, 17.5% of the 65 members who responded
said that they had noticed an increase in predatory marriages. Three solicitors also
suggested that instances of predatory marriage may be on the “rise”, 1774are “becoming
more prevalent”,1775 or are “an ever-increasing concern”. 1776Similarly, one consultee,
responding anonymously, characterised predatory marriage as “a rising concern”,
noting that “financial exploitation is likely to only increase”.
13.89 Some consultees thought that predatory marriage would continue to increase due to
the ageing population and the increasing incidence of dementia. For example, Hunters
Law LLP 1777thought that the “issue of predatory marriage is likely to increase in step
with an ageing population suffering from dementia” together with the “rise in
sophisticated predators and fraudsters”. A member of the public said the issue is “a
worry for all adults as they grow older that this could happen to them”.
13.90 In their responses to both questions about predatory marriage in the Supplementary
Consultation Paper, consultees often commented on the devastating consequences of
predatory marriage.
13.91 Some consultees discussed cases where the abuse was identified during the victim’s
lifetime, explaining how difficult it is to prevent a predatory marriage or other abuse
from taking place. For example, Forsters LLP 1778said it had one recent case of “clear
and imminent risk of predatory marriage”, which resulted in “significant distress to the
client concerned and his family, and resulted in a costly and time-consuming
application to the Court of Protection”. A solicitor, Sarah Young, said:
[I] have advised and spoken to many people who have been affected by it. I can
rarely act for them as there is currently so little that the law can do. I have, for
example, entered a caveat to prevent a marriage on behalf of a client and in another
case, overturned the lifetime transfer of a property by a victim of a predatory
marriage. But abuse can be difficult to spot and often once it becomes obvious, it’s
often too late to act.
13.92 The Bar Council reported a particularly harrowing example, where “the predatory
spouse tried to kill the other spouse for financial gain, first by trying to poison him,
then by trying to involve him in a car-crash”.
13.93 Consultees also spoke of the devasting effect on the families of victims of predatory
marriage. The National Association of Welfare Rights explained:
The tragedy with this is a human one. It is often not so much the loss of expectation
of inheriting a family home or other assets that impacts the family left behind as the
knowledge that their loved one has been manipulated and the memories that may
go with their family home now belonging to the manipulator.
13.94 Similarly, solicitor Sarah Young said it was not only the financial consequences that
are “so severe” for the family, but “the inability to hold a funeral, to recover sentimental
possessions, [and] to show respect to a loved one’s memory”.
13.95 Some consultees argued that the seriousness of the consequences of predatory
marriage should dictate the need for reform, rather than number of predatory
marriages. For example, Forsters LLP said:
Even if the number of predatory marriages were to be considered low, the impact of
those cases should not be underestimated, nor should their limited prevalence be
considered a reason for maintaining the current state of the law.
13.96 The Bar Council echoed this point:
what must be appreciated is the seriousness of predatory marriage, and its impact
on the victims and families involved. ... [N]o one who has heard Daphne Franks talk
about the effect on her and her family of the predatory marriage of her mother, can
fail to be moved by their predicament. It is the seriousness of effect which drives the
argument for reform, more than the amount of times it occurs.
13.97 Professor Robin Jacoby similarly noted that “it is impossible to determine the
prevalence [of predatory marriage], but each case is a preventable catastrophe”.
13.98 Of the consultees who responded to our question about whether the rule that a
marriage or civil partnership revokes a will should be abolished or retained, only a
quarter were in favour of the rule being retained. The majority were in favour of the
revocation rule being abolished.1779
13.99 Consultees in favour of retaining the rule included STEP, the Professional Standards
Board of the Society of Will Writers and Estate Planning Practitioners, and the Law
Society of Northern Ireland.
13.100 Consultees in favour of abolishing the rule included the Chancery Bar Association;
the Bar Council; the Charity Law Association Working Party; the Society of Will
Writers and Estate Planning Professionals; Charities Aid Foundation; Remember a
Charity and the Institute of Legacy Management (responding jointly); Predatory
Marriage UK; Rape and Sexual Abuse Support Service South Buckinghamshire; Age
UK Salford; Navigo Health and Social Care CIC (Mental Health Service Provider); and
the National Association of Welfare Rights.
13.101 Many consultees favouring retention commented on the significance of marriage.
They thought that the rule is justified because of the need to provide protection to
surviving spouses and civil partners, and because it should not be assumed that after
marriage or civil partnership the person’s existing will would continue to represent their
wishes. For example, the Professional Standards Board of the Society of Will Writers
and Estate Planning Practitioners said:
Retaining the rule that marriage and civil partnership should automatically revoke a
previous will makes practical sense considering that the act of marriage represents a
new chapter in a person’s life. As practitioners in the field, we are fully aware that
our clients do not automatically contact us to update their wills when they get
married. If the rule were abolished it would potentially mean conflicts of intention that
are highly unlikely to be representative of what a person would truly want.
13.102 Consultees in favour of retention often thought abolition of the rule would result in an
increase in family provision claims under the 1975 Act by surviving spouses and civil
partners. They explained that surviving spouses or civil partners might not be able to
afford 1975 Act claims, or that the claims might cause them emotional distress or
wider family disputes. For example, STEP said:
STEP believes that reversing the rule, when our legal system does not have a
matrimonial property regime or forced-heirship rule, would potentially leave genuine
spouses/civil partners (including long-term cohabitants who decide to marry or enter
into a civil partnership) to face making a claim under Inheritance (Provision for
Family and Dependents) Act 1975 for reasonable financial provision. We do not
think that making a change to the law that would potentially lead to an increased
need for litigation is a good idea.
13.103 Similarly, although Forsters LLP noted that beneficiaries under a will disinherited by
the rule would have “limited or no avenues of redress”, it nevertheless thought that
“there may be as much scope for injustice in abolishing the rule ... as in retaining it
...”. It explained that its experience showed that:
Inheritance Act claims are almost always expensive and can themselves cause
significant distress, not only to the surviving spouse or civil partner, but also among
the deceased’s other family members and heirs.
13.104 Three consultees suggested that concerns about predatory marriage should not
determine the issue. Two did so because they did not think abolishing the rule would
prevent predatory marriage: they thought that predators would find other ways to
obtain their victims’ assets.
13.105 Consultees in favour of retaining the rule often suggested alternative options that
might address issues arising from predatory marriage.
(1) One suggestion was for public awareness of the rule to be increased, either by
broad information campaigns or by information being provided to couples
getting married or entering a civil partnership, potentially with advice at the point
of marriage or civil partnership that couples should remake their wills.
(2) Another suggestion was for legal reforms to the law governing weddings or
marriage. Several consultees argued that registration officers should have an
enhanced role in assessing capacity or identifying predatory marriages. STEP
noted our recommendations in the weddings project to require notices of
marriages to be publicised online and to allow for pre-emptive caveats to be
entered. It also argued that the test for capacity to marry or form a civil
partnership “should be clarified”, specifically that “it needs to be made clear if
part of the test is that the person should understand that a marriage/civil
partnership will revoke a will”, as suggested in Re DDM.1780 Several other
consultees suggested that a better solution to predatory marriages was to make
marriages in cases of incapacity or coercion void, or to make predatory
marriages void (as a will is not revoked by a void marriage).
13.106 Three consultees noted that abolishing the rule that a marriage or civil partnership
revokes a will would not prevent predatory marriages where the victim has no will in
place.
13.107 Among consultees in favour of abolishing the revocation rule, many argued that the
lack of or low public awareness of the rule is reason enough to abolish it. Some
confirmed our understanding that public awareness is low; in particular, some
solicitors noted that their clients were generally unaware of the rule and surprised
when told of it. Some consultees further argued that they did not think improving
public awareness was feasible or likely, nor that doing so would mean that the rule
should be retained. Some also emphasised that the lack of awareness of the rule
causes unintentional intestacies, which can cause significant problems, particularly
where a testator was in a second or third marriage.
13.108 Some consultees in favour of abolition described the rule as paternalistic or contrary
to testamentary freedom. 1781The Bar Council put this point in strong terms:
There is something intrinsically wrong about a rule which effectively tears up an
individual’s will, without them being remotely aware that that has happened. It is
paternalistic, in an era when paternalism is generally rejected.
13.109 Some consultees argued that it should be up to testators as to whether and when to
revoke or update their wills. For example, a solicitor, John Paul Breeze, said that
making or revoking a will “should be a deliberate act. ... The intestacy rules should
only provide a default position in the absence of a will, and not be reintroduced by a
marriage”. Similarly, some consultees noted that the decision to get married and the
decision to make a will are different, with different underlying intentions.
13.110 Consultees in favour of abolition also argued that the rule was outdated or archaic.
Many of these consultees referred to the prevalence of cohabitation and/or second or
later-in-life marriages as reasons to abolish the rule; they did not think it was safe to
assume that people in these circumstances would want their existing will to be
revoked. For example, the Chancery Bar Association said:
These days, most people now live together, and may have acquired property
together, and may have made testamentary and other arrangements together,
before their marriage. Marriage is often a less seismic change in a person’s financial
world as it once was. The Commission’s observation that even the birth of a child
does not revoke a will is apposite.
13.111 In relation to previously cohabiting couples, some consultees noted that the intestacy
provisions might provide less to the surviving spouse or civil partner than they would
have received under the will. And for couples marrying later in life, consultees said
that providing for their children might be the testator’s priority. Referring to the latter
case, the Bar Council said:
It is unsafe to assume that individuals marrying for a second time automatically wish
to benefit their spouse to the exclusion of their own children. The more likely
assumption will be that (at least initially) each spouse wants their own assets still to
pass to their own children, as their existing (but now revoked) will already probably
provided. They may, at the same time, wish their estate to be capable of benefiting
their surviving (second) spouse, but not to pass to them outright. However, the
intestacy provisions no longer include a life-interest in favour of the surviving
spouse. That was relatively recently (2014) replaced by an absolute interest in half
(in addition to the statutory legacy).
A member of the public (responding anonymously) gave the example of his own
situation, as an older widower in a new relationship with an older widow:
I want my new partner to be able to preserve the rights of her children to what they
would reasonably expect to inherit from their parents and for my children to enjoy
the same preservation whilst we both retain the right to make capacitated decisions
to make new plans. I consider it unhelpful for a new marriage to automatically scrap
plans we both made with our late spouses whilst wanting the opportunity to
consciously change them.
I know of family members who have entered into new relationships late in life after
the death of a spouse motivated by the wish for comfort, companionship, intimacy
and the security of a new spouse being recognised as a valid “next of kin” without
the complexity and suspicions associated with automatically undoing plans which
may have been developed over decades.
13.112 Many consultees were also in favour of abolition of the revocation rule because it
acts as an incentive to predatory marriage, or is a loophole that is being exploited,
with some mentioning the work of Predatory Marriage UK. Putting the point in
emphatic terms, the Bar Council said:
The rule enables, indeed encourages, absolutely appalling behaviour. It would be a
wretched dereliction of the rule of law for this permissive facility to continue.
13.113 Consultees in favour of abolition also referred to the lower level of capacity required
to marry than to make or revoke a will. Predatory Marriage UK described the
revocation rule in the light of this situation as “ludicrous”, Hunters Law LLP called it
“perverse”, and the Chancery Bar Association said it is “deeply unsatisfactory”. As the
Chancery Bar Association explained, where the person lacks capacity to make a new
will, the situation “cannot be remedied, except perhaps by a costly application to the
Court of Protection for a statutory will”. But the Chancery Bar Association was not in
favour of “raising the capacity threshold for marriage, as that would have a
discriminatory effect of preventing many individuals with capacity impairment from
marrying”. It considered the revocation rule in the context of capacity law as a whole:
The question of whether an individual has capacity to make a particular decision is
issue specific. This principle underlies both the common law and the Mental
Capacity Act 2005. In general, the more complicated the decision the greater the
required level of capacity. A person may lack testamentary capacity but have
capacity to marry. It is inconsistent with the rule that capacity is issue specific to, in
effect, allow a person to make a complicated financial decision (revocation of a will)
by the act of marrying, when the capacity requirements are different.
13.114 Dr Juliet Brook 1782suggested that the revocation rule might put the UK in breach of its
obligations under Article 12 of the UN Convention on the Rights of Persons with
Disabilities (the “UNCRPD”):
[The UNCRPD] requires states to “take all appropriate and effective measures to
ensure the equal right of persons with disabilities to own or inherit property, to
control their own financial affairs”. Unintentional revocation by virtue of engaging in
an act of marriage, when an individual neither has capacity to revoke a will by other
means, nor make a new will in the terms that they wish, removes control of financial
affairs from these individuals.
13.115 Some consultees said that if predators could not rely on the revocation rule to gain
access to the person’s estate, the predator would instead need to get the testator to
make a new will in their favour. The process of making a will might provide an added
layer of protection: for example, consultees pointed to the higher level of capacity
necessary to make a will, and the greater likelihood that professionals would be
involved in making the new will, meaning that the testator’s capacity is more likely to
be assessed.
13.116 Many consultees in favour of abolition explained that a spouse or civil partner
excluded under a will would still be able to make a claim under the 1975 Act for
reasonable financial provision. For example, the Charity Law Association Working
Party relayed its experience that -
beneficiaries under a will are cognisant of the rights of spouses and civil partners,
meaning that claims under the Act are frequently settled in their favour without court
proceedings.
13.117 Some consultees also noted that other beneficiaries of a will revoked by marriage or
civil partnership would generally be unable to make a claim; accordingly, abolition of
the rule would be a fairer result. Some consultees were also not persuaded that
litigation under the 1975 Act would increase.
13.118 Some consultees suggested other options that might help to address predatory
marriage, other than reforms to weddings law. Many of these consultees were not
necessarily in favour of retention of the revocation rule or were in favour of its
abolition.
13.119 Some consultees commented on the two exceptions to the rule that we had
considered in the 2017 Consultation Paper.
(1) Two consultees supported allowing a testator to state in their will that it should
not be revoked by any future marriage or civil partnership, if the rule were
retained.
(2) Again, if the revocation rule were retained, several consultees supported an
exception applying when the marriage or civil partnership was entered when the
person lacked testamentary capacity, or a general exception applying to
predatory marriages. Conversely, two consultees agreed with us that such an
exception would be too complex or uncertain to work in practice.
13.120 A few consultees thought that marriages entered into without capacity and/or under
duress should be void rather than voidable, or that predatory marriages should be
void.
13.121 Two consultees suggested that the rule could revert to a rebuttable presumption of
revocation. 1783For example, Byron Jones1784 suggested that the rule could be replaced
with a presumption that the testator intended to revoke the will, with the presumption
being reversed in suspicious circumstances, including predatory marriage.
13.122 Professor Rosie Harding, responding jointly with four overseas academics,1785
suggested that equitable doctrines and remedies could have a role to play in
unwinding the financial consequences of a predatory marriage or civil partnership. As
possibilities, she named undue influence, unconscionable bargains, the presumption
or imposition of trusts, and the countervailing presumption of advancement and
constructive trusts arising out of failed joint endeavours. The Chancery Bar
Association suggested that an amended forfeiture rule,1786 or something similar, could
apply to persons who committed the offence of forced marriage.1787
13.123 In our view, a compelling case has been made for abolition of the rule that a marriage
or civil partnership revokes a will. We consider that automatic revocation of a person’s
will is contrary to the principle of testamentary freedom. Moreover, we think that the
revocation rule is unlikely to reflect what many people would intend or expect.
Crucially, we think that it is difficult to justify a rule which is at odds with the law’s
decision-specific approach to capacity. Furthermore, we believe that abolishing the
rule will add a layer of protection for vulnerable people at risk of an insidious form of
financial abuse.1788
13.124 It is important to emphasise that we do not think that abolishing the rule that a
marriage or civil partnership revokes a will is likely to eliminate predatory marriage.
Clearly, it will not safeguard a person who has no will in place. Other safeguards and
remedies will probably be necessary. We consider that the Law Commission’s
recommendations in Celebrating Marriage: A New Weddings Law 1789will help. But
further reforms may also be needed; however, these reforms are outside the scope of
this project (but some may be addressed by other Law Commission projects).1790
13.125 Nevertheless, abolishing the rule is an important step which we can recommend in
this project.
13.126 In our view, the strongest argument in favour of retention of the revocation rule is the
risk that litigation under the 1975 Act would increase if the rule were abolished. The
rule applies to all marriages and civil partnerships, not just predatory ones. The
argument is that, without the rule, surviving spouses and civil partners in legitimate
marriages would more often be left without reasonable provision in the light of a will
which pre-existed the marriage or civil partnership and so would be forced to make a
claim under the 1975 Act.1791
13.127 It is hard to know what the risk of increased 1975 Act litigation would be. It is a
common-sense argument, but also a speculative one.
13.128 We cannot find evidence that litigation under family provision regimes has increased
in other jurisdictions which have abolished the rule. In particular, we have not seen
any suggestion that litigation has increased in the Canadian jurisdictions which have
abolished the rule. However, the situation is not entirely comparable: there are other
legal differences that might impact on the number of claims in Canada, including in
their family provision regimes (under which family members other than surviving
spouses might be more likely to be successful and might receive provision beyond
their financial needs)1792 and the legal effect of a marriage entered into without capacity
(in Canada, such a marriage is void, rather than voidable).1793
13.129 Even if litigation did increase under the 1975 Act, it seems to us unlikely that it would
be a large increase.
(1) First, it seems unlikely that the revocation rule determines the succession of
many estates. For it to apply, the testator would have to have made a will prior
to getting married or entering a civil partnership, and then not make a new will
before they die or lose capacity. Particularly in relation to marriages entered into
earlier in a person’s life, it is likely that the testator will make a will at some point
after getting married or forming a civil partnership, whether they know of the
revocation rule or not. We understand from consultees that people often make
several wills over their lifetimes, to reflect their changing circumstances, such
as getting married, having children, having grandchildren, and so on. 1794The
person’s last will is the one that governs who will benefit from their estate, and
this will tends to be made late in a person’s life. The revocation rule therefore
seems most likely to determine succession in cases where someone dies when
they are relatively young, or where someone marries or forms a civil partnership
when they are relatively old.
(2) Secondly, where the revocation rule does apply, a claim will only be made by
the surviving spouse or civil partner if they feel that reasonable provision has
not been made for them. But changes in family forms that many consultees
pointed to, namely cohabitation preceding marriage and second or later-in-life
marriages, may mean this is not always or often the case. The testator may
have made provision for the survivor under their pre-existing will, which - if the
rule were abolished - would stand. This is particularly likely to be the case
where the couple had cohabited prior to getting married or forming a civil
partnership. As some consultees noted, in such a case the will might make
more generous provision for the surviving spouse or civil partner than the
intestacy rules do. In other cases, the will might make no, or no significant,
provision for the surviving spouse or civil partner, but the marriage or civil
partnership may not have been such as to raise an expectation of significant
inheritance on death. This might be the case in second or later-in-life marriages,
where each of the couple had their own children before marrying - whom they
might wish to inherit from them - and their relationship did not take place during
a period in their lives where they were accumulating assets. In neither case
would it seem likely that a 1975 Act claim would materialise.1795
13.130 Finally, even if litigation were to increase, we think that the consequences overall will
be fairer. We think that the current law disproportionately favours spouses and civil
partners over other potential beneficiaries. Surviving spouses and civil partners benefit
from the rule that marriage or civil partnership revokes a will, together with their
favourable position under the intestacy rules. They are also more likely to succeed
than other potential claimants in a family provision claim under the 1975 Act.
Conversely, the current law provides limited or no protection to adult children and
other beneficiaries under pre-existing wills, in the circumstances where the testator
marries or forms a civil partnership and does not remake their will. Charity
beneficiaries under a revoked will are particularly disadvantaged, having no ability
whatsoever to make a claim under the 1975 Act.
13.131 We think that abolishing the rule will introduce a fairer balance between the interests
of various potential beneficiaries. Although doing so would disadvantage spouses and
civil partners, as they would no longer be able to rely on the intestacy provisions, they
would remain protected by the 1975 Act.
13.132 We are reassured by the evidence of some consultees that 1975 Act claims by
surviving spouses and civil partners, where it is apparent that reasonable provision
has not been made for them, are generally straightforward and successful, and also
likely to settle.1796
13.133 We also wonder whether any increase in litigation under the 1975 Act might be
offset, at least in part, by a reduction in applications for statutory wills under the
Mental Capacity Act 2005 (“MCA”), meaning that there is not an overall increase in
litigation. Obtaining a statutory will is the only option to prevent a person from dying
intestate when their will has been revoked but they lack the capacity to make a new
one. Therefore, if wills are no longer revoked on marriage or the formation of a civil
partnership, there will be fewer individuals without a will who lack capacity. The result
might therefore be fewer statutory will applications.
13.134 A strong argument in favour of abolition of the revocation rule is that it is contrary to
the approach to capacity in both the common law and the MCA 2005. Many
consultees, including the Chancery Bar Association and Dr Juliet Brook, made
persuasive arguments on this point. Mental capacity under the law is issue specific. It
is therefore difficult to justify an exception to this principle in the case of the revocation
rule: as a matter of policy, it is hard to see why a person who lacks the capacity to
revoke their will intentionally should nevertheless revoke their will unintentionally, by
getting married or entering a civil partnership. As consultees remarked, it allows a
person effectively to make a significant financial decision when the law says that they
are unable to do so. Even if this outcome does not in fact amount to a breach of the
UNCRPD, we agree with Dr Juliet Brook that it removes people’s agency over the
succession of their property.
13.135 Another compelling argument for reform is that, by abolishing the rule, we will
eliminate one incentive - perhaps the main financial one - for predatory marriage.
Although we do not think that predatory marriage is common, we agree with the
consultees who argued that the frequency of predatory marriage should not be the
determining factor. We think that the significant harm caused by this type of financial
abuse warrants intervention. Consultees’ experiences illustrate how destructive
predatory marriage is, for both victims and their families. We think that we are in a
position to recommend reforming the law in this important respect, and that we should.
13.136 The effect of the rule, so the need for reform, was recently demonstrated in the case
of Langley v Qin. On the facts of that case, in June 2019, the 93-year-old testator
married his second wife, Guixiang Qin, who was 54. The marriage revoked a will that
the testator had executed in which his daughter was the main beneficiary. In March
2020, the testator purportedly made a new will, which named Qin as the sole
beneficiary and executor. In May 2020, the testator died. Before and immediately after
he died, there were multiple suspicious transfers of large amounts of money from the
testator to Qin. The testator’s daughter alleged that the marriage between her father
and Qin was predatory.
13.137 The testator’s daughter successfully challenged the March 2020 will, which the court
set aside based on lack of testamentary capacity, want of knowledge and approval,
and undue influence. The testator therefore died intestate, and under the intestacy
rules, his new wife Qin would receive the majority of his estate.1797
13.138 Testamentary capacity, knowledge and approval, and lack of undue influence are all
requirements that have a protective function in wills law: they seek to protect
vulnerable testators from financial abuse by ensuring that their will reflects their
testamentary intentions. But they cannot provide a remedy for a predatory marriage.
In an online article, the lawyer for the testator’s daughter in Langley v Qin said, “this
case is yet another reminder of the Court’s powerlessness in the face of predatory
marriage”.1798 Notably, if the marriage had not revoked the will, then once the 2020 will
was set aside, the testator’s previous will, in favour of his daughter, would have
remained valid. Qin would have been able to bring a claim under the 1975 Act, in
which the circumstances of the marriage and its duration would have been relevant to
determining whether and what reasonable financial provision should be made for her.
13.139 As we explained above, we do not think that abolishing the revocation rule will alone
solve the problem of predatory marriage. Certainly, it is true that abolishing the rule
cannot disincentivise predatory marriage where the victim does not have a will. But
this project is focused on wills law. We are not in the position to address the problem
comprehensively, but we do not think that should be a reason for us not to act at all.
13.140 Some consultees suggested alternative reforms to wills law: expanding or creating
new exceptions to the revocation rule or turning the rule into a rebuttable presumption.
We do not think that either approach would address the problems caused by the rule
(particularly the lack of awareness of the rule) or prevent predatory marriages.
13.141 We continue to think that allowing testators to state in their will that the will should not
be revoked by any future marriage or civil partnership would not help to prevent
predatory marriages. We do not think that people are likely to anticipate being the
victim of financial abuse. We also do not think that it would be justifiable to protect
someone from financial abuse only where they have anticipated it. Moreover, for this
exception to have an impact on predatory marriage, virtually all testators would have
to state in their will that it should not be revoked on a subsequent marriage or civil
partnership. Rather than relying on each individual testator to disapply the rule in
relation to themselves, it seems to us more straightforward and fairer simply to abolish
the rule.
13.142 Although we previously proposed this new exception, after further thought we have
concluded that an exception to the rule such that a will would not be revoked if the
person lacked testamentary capacity at the time of their marriage or civil partnership
would not be workable in practice. Moreover, such an exception would also cause
uncertainty about the status of people’s wills. Our work in relation to weddings law
showed that it would be difficult to expect that registration officers or Anglican clergy
would effectively be able to assess the testamentary capacity of those giving notice to
them of their intended marriage. It would require them to make an assessment in the
abstract. Registration officers and Anglican clergy do not have the information about
couples getting married necessary to assess their testamentary capacity: they do not
have information about their potential beneficiaries, their estate, or their testamentary
intentions. Moreover, we do not think it would be appropriate to require people giving
notice of their marriage or civil partnership to provide this information to enable an
assessment of their testamentary capacity to be made.
13.143 Although it is an interesting idea, we do not think that turning the rule into a
rebuttable presumption is a viable option for reform. We think it could result in
uncertainty and litigation, which is the reason why the Real Property Commissioners
in their Fourth Report in 1833 recommended that the presumption which applied at the
time be abolished.1799
13.144 Consultees proposing that the rule become a presumption suggested that the
presumption would only be rebutted in exceptional cases, including in cases of
suspicious circumstances and predatory marriage. But we do not see how it could
operate that way. Consultees described it as a presumption of intention to revoke, to
apply when the person marries or enters a civil partnership. Given what we know
about public awareness of the revocation rule, it appears that the presumption could
be rebutted in most cases. That is, if someone is unaware that a marriage revokes a
will, it seems hard to argue that they intended, when getting married, to revoke their
will. A person cannot intend something of which they are ignorant, unless intention is
understood as a speculative assessment of what the person would have intended had
they known of certain facts. But intention in wills law tends to mean actual intention.1800
13.145 Accordingly, such a presumption seems likely to cause uncertainty about whether a
will had been revoked in any given case. We do not therefore consider that this is a
viable alternative to abolishing the rule.
13.146 Most consultees seemed to agree that there is little public awareness of the rule that
marriage or civil partnership revokes a person’s existing will. The evidence from
Predatory Marriage UK and some solicitors has been useful on this point.
13.147 We do not think that campaigns to increase public awareness would necessarily be
successful in addressing any of the problems the revocation rule causes.
13.148 We do not think that more widespread knowledge of the rule would in any event act
to prevent the effects of a predatory marriage. Even if the victim of a predatory
marriage were told, at the time of getting married, that their will was being revoked, we
do not think that they would necessarily execute a new will (if they had capacity to do
so) or apply for a statutory will. Predatory marriage may typically be combined with
isolating the testator from their family and with other controlling or coercive conduct.
Further, individual victims of this sort of abuse may be unable to seek help. In relation
to financial abuse of the elderly, one legal text explains that -
those who have been abused are often reluctant or unable to come forward: they
may have difficulties because of physical or mental impairment; they may feel
ashamed or guilty about what has happened; or they may fear what might happen to
them if they were to report the abuse. As is often the case, feelings of dependence
on the abuser and social isolation will hinder reporting of abuse.1801
13.149 We also do not think that general public awareness campaigns would result in
widespread knowledge of the revocation rule, preventing the unintentional intestacies
that the rule causes. The experience with the common law marriage myth suggests
that beliefs about what the law is or should be are not easily displaced.1802
13.150 We agree with the many consultees who suggested that reform to weddings law
could help to prevent predatory marriages. We made recommendations to strengthen
the protections weddings law provides in our 2022 report Celebrating Marriage: A New
Weddings Law. 1803However, as we explained in the Supplementary Consultation
Paper, weddings law alone cannot address the issue of predatory marriage. In
particular, it cannot prevent the revocation rule in wills law from acting as an incentive
to predators.
13.151 Our focus in the weddings project was on forced marriages: that is, where a person
marries when they lack the capacity to do so or when they are coerced into marrying.
Forced marriage is a criminal offence.1804 As the weddings project focused on the
formalities necessary to be legally married, reviewing the capacity required to marry
was outside the project’s terms of reference. However, concerns about forced
marriage were central considerations in our recommendations to make the
preliminaries process (the process for giving notice of intention to marry) more robust
and to put specific duties on officiants to ensure that parties to a marriage have
capacity to marry. These recommendations would enhance the protection against
predatory marriages in those situations where a person has lost capacity to marry or is
being coerced into the marriage.
13.152 However, we disagree with consultees that reforms to weddings law can entirely
prevent predatory marriages. So long as the person has capacity to marry and is not
being coerced into the marriage, weddings law cannot stop the wedding from going
ahead. Weddings law cannot prevent a wedding from taking place on account of
someone’s motivations for marrying, nor can it prevent a wedding from going ahead
where one of the couple lacks capacity to make a will.
13.153 As we explained in the Supplementary Consultation Paper, 1805the law protects the
rights of people to marry or form a civil partnership. The threshold for capacity to
marry or form a civil partnership, as decided by the courts, is relatively low, as too high
a level would “operate as an unfair, unnecessary and indeed discriminatory bar
against the mentally disabled”. 1806The mere fact that a person has been diagnosed
with dementia, or has any other mental impairment, does not necessarily mean that
they lack capacity to marry or form a civil partnership. And so long as a person has
capacity, the wisdom of the decision is a matter for them. The decision to marry or
form a civil partnership later in life, even when others, such as adult children,
disagree, is a decision for the older person to make.1807
13.154 In our view, reform directed at the consequences of the marriage for a person’s will
will better help to protect vulnerable people from those who wish to commit financial
abuse against them, without undermining their right to marry or form a civil
partnership.
13.155 Some consultees suggested that a marriage or civil partnership entered into where a
party lacks capacity or where their capacity was vitiated by duress or coercion should
be void, rather than voidable. 1808A void marriage does not revoke a person’s will.1809
13.156 This potential reform was not something that we could consider in our project on
weddings law, as we were not considering the grounds on which a marriage could be
void or voidable other than those which relate to a failure to comply with the
formalities. 1810It is also not within the scope of this project on wills law.
13.157 Moreover, we do not think that this proposal, if pursued, would mean that the
revocation rule should be retained. Aside from doing nothing to address the
unintentional intestacies that arise from the revocation rule where capacity to marry is
not in doubt, we do not think that on its own it would provide sufficient protection
against predatory marriages.
13.158 The experience of other jurisdictions is instructive here, particularly the experience in
the Canadian common law jurisdictions. In Canada’s common law jurisdictions, a
marriage entered into without capacity is void. That means that a predatory marriage
can be nullified after the fact if the victim lacked capacity to marry. Accordingly,
families of victims of predatory marriages have challenged the validity of those
marriages in court, and in some cases have succeeded.1811 However, there are
continuing concerns in Canada about whether the law does enough to combat
predatory marriage. This is in part because incapacity to marry is “very difficult to
prove”.1812 Due to the low level of capacity required, Kimberly A Whaley argues that
“requisite capacity is often found by a court, even in the most obvious cases of
exploitation”.1813 And even where incapacity can be proven, doing so is time
consuming and costly.1814
13.159 Several jurisdictions in Canada have recently abolished the rule that a marriage
revokes a will. The rule has been abolished in British Columbia,1815 Alberta,1816
Saskatchewan,1817 Yukon, 1818and, most recently, Ontario. 1819The decision to abolish
the rule in some of these jurisdictions flowed, at least in part, from concerns about
predatory marriage.1820 The Manitoba Law Reform Commission has also recently
recommended that the rule be abolished in Manitoba, based in part on the same
concerns.1821
13.160 Therefore, abolishing the rule that a marriage revokes a will is one important step in
addressing predatory marriage. However, it might be that other reforms will be needed
to entirely address the issue of predatory marriage. As Kimberly A Whaley argues,
abolishing the rule might be “merely one small step towards the development of a
more cohesive approach to preventing financial abuse through predatory marriage”.1822
13.161 Consultees also suggested other possible reforms to address concerns about
predatory marriage.
13.162 Unfortunately, many are not within the scope of this project. For example, it is not
within the scope of this project to evaluate the possibility of using existing equitable
doctrines and remedies to unwind a predatory marriage. Nor is it within the scope of
this project to consider an extension of the forfeiture rule.
13.163 In any event, we do not think that these ideas are alternatives to reform of the rule
that a marriage revokes a will. Instead, they appear to be possible additional
protections against predatory marriage.
13.164 We have explained in this chapter our view that the revocation rule should be
abolished. We think a compelling case has been made for its abolition. We consider
that abolishing the rule will promote testamentary freedom. We also think it will help to
align the law with people’s expectations and beliefs, making the law more modern. It
will also promote a more coherent approach in the law to capacity, by ensuring that
the decision-specific approach to capacity is not undermined by a rule of automatic
revocation of a person’s will. Finally, we think it will be an important step towards
addressing predatory marriages and preventing the terrible harm they cause.
13.165 We recommend that the rule that a marriage or civil partnership revokes a will, in
sections 18 and 18B of the Wills Act 1837, should be abolished.
13.166 The draft Bill enacts this recommendation in clause 8. Clause 8 outlines the only
circumstances in which a person’s will can be revoked. It does not include abolition by
operation of law when a person gets married or forms a civil partnership. This,
together with the general repeal of the Wills Act 1837 in paragraph 1 of Schedule 4 to
the Bill, abolishes the revocation rule.
13.167 The draft Bill does not say on its face that marriage and civil partnership no longer
act to revoke a will, because legislation does not explain the consequences of the law,
including changes to the law. However, the consequences of clause 8 together with
paragraph 1 of Schedule 1 are explained our Explanatory Notes to the draft Bill.
13.168 Under the draft Bill, abolition of the rule will apply in relation to marriages or civil
partnerships formed after the Bill comes into force. 1823The marriage or civil partnership
is the moment at which the current rule acts to revoke the will. Abolition of the rule
could not operate from, for example, the date of death, as doing so would have a
retrospective effect, effectively reviving wills that had previously been revoked. This
would cause uncertainty and therefore confusion.
14.1 A mutual will allows two or more testators to make a will in a way that prevents the
surviving testator (“the survivor”) from changing their will after the other testator’s
death (“the first testator”).
14.2 A mutual wills arrangement can offer a practical solution for testators who wish to
protect their assets after their death. Mutual wills are often used where testators want
to make provision for the survivor during their lifetime but also for agreed beneficiaries
after the survivor’s death.
14.3 Such wills can be useful in cases of second marriages. For example, a person might
agree with their spouse that they both leave their property to each other and that once
the survivor dies, the property will then pass to the person’s child from a previous
marriage. Spouses might also choose to make a mutual will to prevent the survivor
from changing the beneficiaries of their combined estate, for example, in the event
that the survivor were to remarry or have further children.
14.4 Mutual wills arrangements are often criticised as they restrict the survivor from
responding through their will to a change in their circumstances that arises after the
death of the first testator. This inflexibility can create problems particularly where the
survivor wishes to leave property to family or dependants who are not named
beneficiaries under the terms of the mutual wills arrangement.
14.5 At the time of our Consultation Paper, practitioners told us that mutual wills are rare,
and that they often discourage clients from making mutual wills because of their
inflexibility. Practitioners might instead advise the use of a trust where a testator
wishes to control how those who inherit their property deal with it after their death. 1824As
we explain in this chapter, it seems that mutual wills continue to be rare.
14.6 We do not recommend that the doctrine be abolished, or its requirements be modified.
We think that in giving effect to mutual wills, the law serves a purpose in protecting
testamentary intentions. However, we see the need to introduce flexibility into the
doctrine of mutual wills to mitigate situations of unfairness in the current law. We
therefore recommend that the Inheritance (Provision for Family and Dependants) Act
1975 (“the 1975 Act”) should be amended to provide that property subject to a mutual
wills arrangement is part of the deceased’s net estate for the purposes of that Act.
This reform will enable family members and dependants to bring claims that the
survivor’s estate did not make reasonable financial provision for them, and for the
court to grant them financial provision out of property from the survivor’s estate that is
subject to a mutual wills arrangement.
14.7 For a mutual wills arrangement to be binding, the following requirements must be met.
(1) Two or more testators must agree -
(a) to dispose of their property in a certain way and execute wills pursuant to
that agreement; and
(b) that the surviving testator will be bound by the arrangement.
(2) The first testator must die.1825
14.8 Although mutual wills may most often be made between two spouses, there is no
requirement that the testators be in a particular type of relationship.1826 Neither is it
necessary that each testator receive a benefit under the will.1827
14.9 Mutual will testators are free to agree what property and interests should fall under the
terms of the mutual wills arrangement; 1828it may cover all, or part of, their property or
residuary estate.1829Throughout this chapter we refer to “mutual wills property” to mean
property that is held by the survivor but in which another person has a beneficial
interest as a result of a mutual will agreement.
14.10 Mutual wills are often confused with mirror wills. The term “mirror wills” describes wills
that are made in substantially the same terms, and usually at the same time. The wills
subject to a mutual will agreement are commonly drafted as mirror wills; however, the
execution of mirror wills does not necessarily give rise to a mutual wills arrangement.1830
For a mutual will, what is required is evidence that the testators agreed to be bound by
the terms of their arrangement. 1831In contrast, no specific legal obligations arise in
relation to mirror wills, which a testator remains free to amend and revoke even after
the other testator has died.
14.11 The agreement for mutual wills must be a “contract enforceable at law”. 1832For a valid
contract there must be consideration which, for mutual wills, usually takes the form of
the testators’ mutual promises not to revoke or alter their wills after the first testator
dies.1833 The wills need not specifically state this intention, but the agreement must be
“clear that the wills are to be mutually binding” 1834in that the survivor is bound to
dispose of the property according to the mutual wills arrangement.1835
14.12 Agreement can be proved, on the balance of probabilities, by express declarations
within the mutual wills, or by other clear and satisfactory extrinsic evidence from
outside the wills, which in some cases can include the making of an oral agreement.1836
14.13 Proof of an agreement in writing may be required where a mutual will specifically
disposes of land. Given that the agreement for a mutual will must be a contract at law,
the court in Healey v Brown 1837found that an agreement to make a specific disposition
of land in a mutual will had to comply with the formality requirements of section 2 of
the Law of Property (Miscellaneous Provisions) Act 1989.1838 That is, the agreement to
dispose of land must be in writing, incorporate the terms of the arrangement, and be
signed by both parties. 1839However, the court’s reasoning in Healey has been criticised
by subsequent case law.1840 The view that section 2 applies to mutual wills that dispose
of land was described, in a remark concerning the conduct by the executors
considered in relation to costs, as a “bad point” by the Court of Appeal in Shovelar v
Lane.1841 There exists dispute as to whether the view in Healey remains good law.1842
14.14 The final requirement is that one of the mutual testators dies. The death of the first
testator is the event that makes the agreement binding. 1843Before this event, either
testator may revoke or alter their mutual will, or otherwise revoke the agreement.1844
14.15 After the death of the first testator, the law imposes a constructive trust on the survivor
in favour of those intended to benefit under the terms of the mutual wills. 1845The
constructive trust prevents the survivor from breaking their promise to the first testator.
14.16 A constructive trust arises because the first testator has made good their promise to
dispose of property under their will in the agreed way. In turn, the survivor is then also
bound by their promise to dispose of property as agreed, which usually means that
they are bound not to revoke or alter their will.1846
14.17 As Professor Roger Kerridge states: “equity does not prevent, but frustrates, the
unconscionable revocation of a mutual will”.1847 Therefore the effect of the constructive
trust is that “the court, if asked, will ultimately refuse to give effect to such alteration or
revocation”. 1848The same applies even where a mutual will is revoked by operation of
law, for example, by section 18 of the Wills Act 1837 following the remarriage of the
survivor testator.1849 Where the survivor dies having revoked or altered their will, their
personal representative will take the property subject to the constructive trust
benefiting the beneficiaries to the mutual wills arrangement.1850
14.18 The Inheritance (Provision for Family and Dependants) Act 1975 allows family -
including the spouse or civil partner or child - or other dependants to apply for
financial provision out of the “net estate” of the deceased where they were not
provided with reasonable financial provision under the deceased’s will or on intestacy.
Section 25(1) of the 1975 Act defines net estate as -
all property of which the deceased had power to dispose by his will ... less the
amount of his funeral, testamentary and administration expenses, debts and
liabilities. .
14.19 It appears that property subject to a mutual will agreement does not fall under the
description of property that the survivor has the power to dispose of in their will, due to
the constructive trust that arises when the first testator dies.1851 It therefore seems that
the property is not part of the survivor’s net estate when they die and so claims under
the 1975 Act cannot be made against mutual wills property.
14.20 The exclusion of mutual wills property from the definition of net estate has been
criticised by Sion Hudson and Dr Brian Sloan as unjustly preventing financial provision
from the mutual wills estate for the family and dependants of the survivor.1852
14.21 In the Consultation Paper, we considered it unfair that the law appears to prevent
family or dependants from making a claim for financial provision under the 1975 Act
against property subject to a mutual wills arrangement.
14.22 We explained that disallowing claims for family provision against mutual wills property
prevents an obvious route of redress against potential injustice that arises from the
inflexibility of a mutual wills arrangement. 1853Injustice might arise where the situation of
the surviving testator changes after the death of the first testator. For example, an
informal carer or a new partner who is not provided for in the mutual will and who later
becomes financially dependent on the survivor would be unable to claim for financial
provision upon the survivor’s death.1854
14.23 We therefore provisionally proposed changing the definition of net estate under the
1975 Act to include property that is subject to a mutual wills arrangement, and asked
consultees whether they agreed.1855
14.24 We did not propose abolishing the doctrine of mutual wills. Although inflexible, mutual
wills arrangements allow a person to protect their assets in a way that creates
certainty about how they will be disposed of in the future. Such certainty may be
important to the testator for a variety of reasons.1856
14.25 Trust arrangements can also provide certainty, but unlike a mutual will, trust
arrangements may be both more complex and expensive to set up and manage. 1857We
agreed with Sion Hudson and Dr Brian Sloan that abolishing the mutual wills doctrine
would be too onerous an attack on a testator’s freedom to dispose of their assets, and
that a “more nuanced tweak to its operation may be preferable”.1858
14.26 We also decided against placing the law of mutual wills on a statutory footing. We
feared codification in statute could have the unwanted effect of increasing the
popularity of mutual wills.1859
14.27 The majority of consultees who responded to the question agreed with our provisional
proposal to amend the definition of net estate in the 1975 Act to include property that is
subject to a mutual wills arrangement. 1860They included the Law Society, the Chancery
Bar Association, STEP and the Society of Legal Scholars.
14.28 Some consultees commented on the prevalence of mutual wills. Most who did so
agreed that they were rare. However, two consultees thought that mutual wills are
used more regularly than is generally supposed.
14.29 Consultees also highlighted difficulties with mutual wills, describing them as inflexible,
confusing, and having unpredictable outcomes. Some consultees highlighted the risk
of litigation as a result of them. One consultee explained that “mutual wills should be
discouraged as very rarely appropriate”. 1861Some consultees explained other methods
that are better suited to protect a person’s assets, including the use of a trust.
14.30 Several consultees considered that there exists uncertainty as to what property is
subject to the mutual will agreement following the death of the first testator. The
Society of Legal Scholars also explained the uncertainty about the requirements for
dispositions of land in mutual will agreements, following Healey v Brown.1862 The SLS
doubted why a mutual will should comply with the statutory formalities of section 2 of
the Law of Property (Miscellaneous Provisions) Act 1989 given that such wills are
enforceable through the law of constructive trusts, an aspect of law that
“conventionally justifies a departure from formal requirements”. To clarify the law on
this point, the Chancery Bar Association proposed that all mutual wills arrangements
should be required to be in writing and signed by both parties to the agreement.
14.31 Consultees in favour of the proposal offered a number of reasons to support reform. A
couple of consultees, including the SLS, welcomed the certainty the proposal would
achieve, on the basis that it is unclear whether mutual wills property falls under the
definition of net estate in the 1975 Act. As Alastair Brierley 1863explained, although the
current definition of “net estate” could catch mutual wills property, “the proposed
reform would at least remove doubt and at best bring about a sensible reform”.
14.32 Some consultees also expressed agreement with our view that the proposal would
help tackle situations where a dependant is “unfairly prejudiced” due to the inflexibility
of a mutual wills agreement. 1864STEP and the Law Society explained that bringing
mutual wills property within the scope of the 1975 Act would create a cost-effective
and efficient solution. Professor Rosie Harding described our proposal as “the most
appropriate mechanism for dealing with the potential injustices that could follow from
mutual wills”. Likewise, a solicitors’ firm described the proposal as “a simple tweak”
which would introduce flexibility within the doctrine of mutual wills and “help to
alleviate the problems it generates in practice”.1865
14.33 Consultees also thought that our proposal would align the law of mutual wills with the
general law that enables the court, in exercising its power under the 1975 Act, to
balance competing claims against the deceased’s available assets. 1866For example,
the Society of Will Writers and Estate Planning Practitioners explained that:
The needs of the person who was not provided for in the mutual will but who would
reasonably expect to be provided for must be fairly balanced with the expectations
of the beneficiaries who would have inherited under the mutual wills arrangement,
and who may have relied on this.
14.34 Of the consultees who disagreed, some thought that the proposal could increase
litigation. For example, LawSkills Ltd explained that:
It is acknowledged that there is already a disproportionate amount of mutual wills
case law considering the very small number of mutual wills created. This
amendment would only increase the likelihood of litigation where mutual wills have
been used.
14.35 Anthony Gold Solicitors thought that our proposal to extend mutual wills property to
claims under the 1975 Act would “undermine the concept of the mutual will” and the
security it promises over the testators’ intentions to dispose of their property according
to the mutual agreement. Dr Richard Hedlund1867 opined that although mutual wills are
“seemingly rare”, the law should continue to uphold the terms of a mutual will so that a
claim under the 1975 Act cannot be made against mutual wills property.
14.36 A law firm also noted that mutual wills are often used by older testators, especially
where a married testator has children from a previous marriage, as a suitable
substitute to formal trust provisions. It thought our proposal may “put mutual wills at a
relative disadvantage” and so testators might be advised to opt instead for more
formal trust provisions which would deprive them of “a regime that they otherwise
would have preferred”.1868
14.37 Some consultees also argued in favour of abolishing the doctrine of mutual wills. For
example, Professor D G Barnsley offered that “the obvious answer” to concerns
regarding the “inflexibility and injustice” of mutual wills, and the fact that practitioners
discourage their use, would be to abolish the doctrine. He further described mutual
wills as the “antithesis of upholding testamentary intention”.
14.38 Other consultees agreed with our view that the doctrine of mutual wills should not be
abolished. For example, the Society of Legal Scholars suggested that even if the law
no longer recognised mutual wills, some testators would continue to execute wills
subject to a private agreement that they should be mutually binding. A few consultees
highlighted how mutual wills offer a solution to inheritance problems that might arise
from the remarriage of the testator’s surviving spouse.1869 The Chancery Bar
Association also considered that although the effect of a mutual will might be
“undesirable” at times, they are wills made by testators in exercise of their
testamentary freedom. Moreover, the Bar Council considered there to be “no coherent
basis for abolishing mutual wills, undesirable and misunderstood though their effects
may (sometimes) be”.
14.39 Some consultees also commented on our view in the Consultation Paper that the
doctrine of mutual wills should not be placed on a statutory footing. The Society of
Legal Scholars doubted our concern that this approach would encourage the use of
mutual wills arrangements. However, it agreed that the doctrine was best left to the
development of the common law so that the law can respond to “unusual or extreme
cases” that might be difficult to catch with legislation.
14.40 Since the Consultation Paper, the courts have further considered the type of
agreement that is required to establish a mutual will.
14.41 For example, in Legg v Burton, Judge Paul Mathews, sitting as a High Court judge,
accepted the evidence of the claimants, who were present at the time the testators
executed their wills, that the testators described the wills as “set in stone” and that
each had agreed with the other that they would not revoke or alter the terms. The wills
themselves did not indicate that they were mutual wills, but the judge accepted that
the testators had made an oral agreement by promising not to change their wills and
trusting the other not to do so, and understood that was sufficient from the explanation
of their solicitor.1870 The judge emphasised that the standard of proof for mutual wills is
the civil standard, the balance of probabilities, but due to the “inherent improbability” of
mutual wills “cogent evidence” may be required to establish that the requirements are
met.1871
14.42 The High Court in Naidoo v Barton also found sufficient evidence of a mutual will
agreement. It was straightforward in that case, because as well as mirroring and
referring to each other, the wills contained a provision which expressly provided that
they were mutual.1872
14.43 The agreement requirement was also considered by the High Court in McLean v
McLean. In that case, the Recorder at first instance had found that the agreement
requirement had not been met. Both testators had made their wills “on the basis of
their trust in one another” and, because of that trust, neither testator contemplated a
situation where either would change the wills they made.1873 The instructing solicitor
had not discussed mutual wills with the testators or advised them to make one 1874and
had explained to the first testator to have died that there was no guarantee that the
survivor would not later change her will to solely benefit her son. 1875Upon appeal, Sir
Anthony Mann, sitting in retirement in the High Court, upheld the decision and
emphasised that the evidence merely demonstrated a situation of “trust” between the
testators and that mere “expectation, or trust, is not enough” to establish the requisite
agreement for a mutual will.1876 He explained that there is “no doubt” that what is
required is -
a high level of agreement which amounts to, or perhaps is akin to, a contract. ..
This is to be distinguished from something which is merely an “honourable
engagement”, which is not sufficient.1877
The court further stressed that, on the balance of probabilities, there must be clear
and unequivocal evidence of this agreement.1878 Although an implied agreement may
suffice, the “stringency of the agreement requirement” may make it difficult to
establish.1879
14.44 Since 2017, the courts have also discussed the nature of a mutual wills arrangement.
The orthodox position is that equity intervenes to recognise an agreement of a
contractual nature to make and be bound by the terms of a mutual will. It has since
been considered whether the requirement that the testators be bound by the mutual
wills arrangement can arise through the operation of proprietary estoppel rather than
contract.1880
14.45 In Legg v Burton, the judge noted the “unprincipled” distinction in Olins v Walter that
section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 applies to
mutual wills that specifically dispose of land, but not to mutual wills that happen to
dispose of land in the residuary estate.1881 He considered in obiter comments that the
binding effect of a mutual will could arise through the operation of proprietary estoppel
instead of a contractual agreement, avoiding as a result the formalities of contracts
that relate to land.1882
14.46 Similarly, the claimants argued in McLean v McLean,1883 in the alternative, that the
requirement that the testators be bound by the mutual wills arrangement could be
established through evidence of the requirements for proprietary estoppel - because
the first testator relied upon the assurances of the survivor to his detriment - as
opposed to the existence of a contractual agreement.1884
14.47 This claim failed because the court found that one of the requirements for proprietary
estoppel could not be met without “an appropriate representation by Maureen [the
survivor], intended to be binding and received as such, that she would not revoke her
will”.1885 The court therefore did not need to consider whether a binding mutual will
could arise where the requirements of proprietary estoppel are met. However, Sir
Anthony Mann opined that the argument had “a significant degree of plausibility” 1886
and agreed with the view of the judge in Legg v Burton.1887
14.48 However, whether a mutual will could arise by the operation of proprietary estoppel
has been doubted in recent commentary. 1888The recent case of Winter v Winter may
also support the view that the requirements for proprietary estoppel and mutual wills
are different. As the court explained:
There is a material difference between, on the one hand, parents being in
agreement as to the division of their estate between their children on their death,
and making implicit assurances to their children over a long period to that effect and,
on the other hand, the parents agreeing between themselves that the survivor could
not in any circumstances change their will.1889
14.49 We continue to think that the doctrine of mutual wills contributes to the law’s protection
of testamentary freedom. For example, in Legg v Burton the husband died knowing
that his intentions would be “set in stone”; the property his wife would inherit would
eventually be left to their daughters.1890 In that case, the law of mutual wills protected
the daughters’ claim to the mutual wills property by frustrating the disposition in the
survivor’s will in favour of alternative beneficiaries. There are situations where this
certainty is important to the testator, such as where the testator has remarried but has
children from a previous marriage.
14.50 We agree with consultees that mutual wills are often used as substitutes for trusts. But
we do not think that is a reason to abolish the doctrine of mutual wills. We agree with
some consultees that mutual wills might be a preferable option for testators who wish
to avoid the complexities and costs of trust arrangements. Given our understanding
that solicitors generally advise against mutual wills, it might be that mutual wills are
used most often by testators without the benefit of legal advice. As the Society of
Legal Scholars noted, even if the doctrine of mutual wills were abolished, some
testators would continue to execute their wills based on an agreement that they
should be mutually binding. We are wary of eliminating an option that some testators
might continue to try to use and rely upon.
14.51 We therefore do not recommend that the doctrine of mutual wills should be abolished.
14.52 We do, however, consider that more limited reform of mutual wills is necessary.
Mutual wills arrangements are inflexible, which can cause situations of unfairness,
especially for the survivor who is unable to make provision based on the financial
needs of their potential beneficiaries by the time of their own death. We agree that the
“survivor’s circumstances may change so significantly” after the death of the first
testator that “the mutual will agreement is no longer appropriate for [the survivor’s]
wishes and their family”.1891 Therefore, we think that reform is required to soften the
harshness of the binding nature of a mutual will agreement in these circumstances.
14.53 We continue to consider that this concern can be effectively addressed by allowing
mutual wills property to be the subject of 1975 Act claims. Gifts under the doctrine of
donatio mortis causa and property held on a joint tenancy are not protected from the
court’s discretionary power under the 1975 Act to balance the interests of
beneficiaries of the deceased’s estate with the interests of any other family or
dependants of the deceased. We do not consider property subject to a mutual wills
arrangement to be so distinct as to warrant this exceptional treatment. We agree with
Paul Saunders1892 that bringing mutual wills property within the 1975 Act will remove
this “anomaly” in the current law and align mutual wills arrangements with the law of
wills.
14.54 Under our recommendation, mutual wills property will automatically form part of the
deceased’s estate, just as do gifts under the doctrine of donatio mortis causa.
However, property subject to a joint tenancy is treated slightly differently under the
1975 Act: the court has the discretion to treat the deceased’s severable share as part
of the deceased’s net estate, but only if and to the extent it appears just to do so.1893
14.55 The Bar Council and Dr Catrin Fflur Huws 1894suggested that the court should also have
a discretion to treat mutual wills property as part of the net estate for the purposes of a
claim under the 1975 Act. We have not taken this suggestion forward. In our view,
mutual wills property shares more in common with property gifted under a donatio
mortis causa than property the deceased held as a joint tenant. People, often couples,
may hold an asset like a home jointly because the property’s value to them is
considerably more than the sum of its parts. Severing a joint tenancy under the 1975
Act may result in, for example, a surviving spouse having to leave their home and only
receiving half of its value. Discretion is therefore particularly required in relation to joint
tenancies.
14.56 Moreover the court already has a wide discretion under the 1975 Act in deciding how
much to award the claimant, with a wide range of factors to consider when exercising
that discretion. One of these factors is the testator’s obligations and responsibilities
towards beneficiaries of their estate, which will include beneficiaries under mutual wills
arrangements. 1895Accordingly, under our recommendation the court will not be required
to deprive a beneficiary of a mutual wills arrangement of the benefit of the
arrangement unless it is fair to do so.
14.57 We therefore recommend that the Inheritance (Provision for Family and Dependants)
Act 1975 should be amended to provide that mutual wills property is part of the
deceased’s net estate for the purposes of that Act.
14.58 We think that introducing this flexibility into the doctrine of mutual wills is a sensible
approach that will mitigate situations of unfairness in the current law. STEP and the
Law Society thought this option would create a cost-effective and efficient way of
challenging a mutual will. We are further supported by the view of Professor Rosie
Harding that bringing mutual wills property into the scope of the 1975 Act is the “most
appropriate mechanism for dealing with the potential injustices that could follow from
mutual wills”. This recommendation will allow family members and dependants to
make claims that the survivor’s estate did not make reasonable financial provision for
them based on the distribution of property under a mutual wills arrangement, and for
the court to make orders for financial provision to be made out of the survivor’s
property distributed under a mutual wills arrangement.
14.59 The Chancery Bar Association thought we should widen our proposal so that no
arrangement could immunise property from a claim under the 1975 Act, including by
operation of proprietary estoppel. We think this proposal goes beyond the scope of
our project which specifically excludes consideration of proprietary estoppel.1896
14.60 We also do not recommend that the doctrine of mutual wills should be placed on a
statutory footing. We agree with the Society of Legal Scholars that the doctrine is best
left to the development of the common law.
14.61 We have also not taken forward other suggestions from consultees to clarify or amend
the law governing the doctrine of mutual wills itself. As we set out in the Consultation
Paper, we have considered how reform might address a specific issue in relation to
mutual wills: the injustice that can arise as a result of their inflexibility.1897 Given the
infrequency with which mutual wills are executed, we have not sought to reform the
doctrine more generally, as doing so may be considered to normalise or encourage its
use. More fundamentally, as we said above, we agree with the view of the Society of
Legal Scholars that reform of the doctrine should be left to the common law: we
consider that the courts are better suited to respond to the nuanced circumstances
that arise in relation to the law of mutual wills.
14.62 As we explain in this chapter, we recommend that mutual wills property should be
included in the definition of net estate under the 1975 Act so that a claim for family
provision can be made against it.
14.63 We recommend that the Inheritance (Provision for Family and Dependants) Act
1975 should be amended to provide that property that is subject to a mutual wills
arrangement be treated as part of the deceased’s net estate so that such property
will fall within the scope of the deceased’s property out of which an order for
financial provision can be made.
14.64 The draft Bill enacts this recommendation in clause 20. Clause 20 amends the
definition of “net estate” in the Inheritance (Provision for Family and Dependants) Act
1975 to include property that is subject to a mutual wills arrangement. As a result,
clause 20 brings mutual wills property within the scope of the deceased’s estate out of
which an order for financial provision can be made.
14.65 Clause 20 makes other consequential amendments that are necessary to enact our
recommendation. For example, it ensures that a person is able to make a claim under
the 1975 Act that they have not received reasonable financial provision due to the
deceased’s property going to the beneficiary of a mutual wills arrangement, by
amending section 1 of the 1975 Act. Similarly, clause 20 amends section 2 of the
1975 Act, to provide that the court can make an order for financial provision in those
circumstances.
15.1 In essence, the doctrine of donationes mortis causa allows deathbed gifts to be
recognised as valid. A gift given donatio mortis causa (which we refer to as a “DMC”)
is one given by a donor in contemplation of and conditional on their death, in which
they pass the property or control over the property to the donee. 1898A DMC cannot be
revoked by a will, 1899but the DMC itself remains revokable by the donor until their
death.1900
15.2 The doctrine dates back to the Roman period and, as adopted within the law of
England and Wales, is an anomaly that is strictly outside the law of wills. It is
anomalous in that it operates as a hybrid between a gift made in a will and a gift made
during lifetime, and consequently does not form part of the estate that is distributed
upon the donor’s death. Its original purpose was to operate in situations where the
donor did not have the opportunity to make a gift in a will, 1901therefore giving effect to
the testator’s intentions.
15.3 The doctrine is an exception to the formality requirements imposed by statute,
including the formalities required to make a valid will, governed by section 9 of the
Wills Act 1837. 1902It is also an exception to the formalities required for lifetime gifts of
interests in land (of more than three years).1903
15.4 Despite concerns with the doctrine, in particular the risk of fraud and abuse, we do not
recommend that the doctrine be abolished or modified. Its purpose is to give effect to
a person’s testamentary intentions, in a way that softens the hard edges of wills law in
the form of the formality requirements. We recognise that the doctrine may be less
frequently used in the light of the dispensing power which we recommend in Chapter
6. Nevertheless, we think that there is a role for the doctrine’s continuing application.
We also think that the courts have properly confined the application of the doctrine, by
requiring the strictest proof of a DMC, to ensure that it is not abused and operates
only in the exceptional circumstances in which it is intended to operate.
15.5 There are three specific requirements for a valid DMC, as the Court of Appeal
explained in the case King v Dubrey:
(1) the donor must contemplate their impending death;
(2) the donor must make a gift which will take effect only if and when their
contemplated death occurs; and
(3) the donor must “deliver dominion” over the subject matter of the gift to the
donee.1904
15.6 The courts require strict proof of compliance with these three requirements for a valid
DMC. 1905A DMC can be established solely on the donee’s evidence provided that their
evidence is unequivocal1906 and trustworthy, as determined by the court.1907 The court
requires strict proof in order to prevent abuse, given that a DMC circumvents the
safeguards for lifetime gifts and gifts in wills.
15.7 In addition to these three requirements, the donor must have the necessary mental
capacity to make a DMC. The capacity to make a DMC is not the same as
testamentary capacity. Instead, the level of capacity required varies on the nature of
the gift. A trivial gift will require a lower degree of capacity, but the gift of a large asset
will require a level that is akin to the threshold needed to make a will.1908
15.8 In making the gift, the donor “must have a good reason to anticipate death in the near
future from an identified cause”.1909 However, the donor does not need to be on their
deathbed and their death does not need to be inevitable; they can be suffering from
an illness that they could survive. Contemplation of death typically arises from an
illness. However, a valid DMC can also be made when the donor contemplates their
death from an upcoming dangerous medical operation or activity, 1910or even when the
donor is contemplating suicide. 1911Old age alone is insufficient. 1912But the donor does
not have to die from the cause that they contemplated; they can die from another
cause and the DMC will still be valid.1913
15.9 In King v Dubrey, the Court of Appeal discussed how quickly death must occur after
the DMC was made for it to be valid. The court cited cases in which successful DMCs
were made only days before the donor’s death. It also cited the case of Wilkes v
Allington, where the gift was made six weeks before the donor’s death.1914 It contrasted
these cases with the case of Vallee v Birchwood, in which such a gift was found to be
valid even though the gift was made five months before the donor’s death, and the
donor was suffering from old age but had no specific reason to contemplate his
death. 1915For these reasons, the Court of Appeal held that Vallee v Birchwood had
been wrongly decided: in that case, the donor “did not have a reason to anticipate
death in the near future from a known cause”.1916 The Court of Appeal restricted the
time period in which death must occur, suggesting that four to six months is too long a
time, although without specifying the time period within which a DMC must be made.1917
15.10 Therefore, the courts will not give effect to DMCs made far in advance of the donor’s
death, although no further guidance on the period permitted between the making of
the gift and the donor’s death has been provided by the case law.
15.11 In order to make a valid DMC, the gift must be conditional on the donor’s death. The
donor must intend that the gift will only take effect on their death, reserving the right to
revoke it until then. The donor must also specifically require the property back if they
survive. However, if the donor’s death is inevitable, this condition is relaxed and the
law infers that the gift was given with the intention that the gift should only be given in
the event of the donor’s death. The donor’s intention to make a gift cannot be either
an intention to make a gift during their lifetime or to make a gift by will; in either of
these situations they must observe the necessary formalities to make a valid lifetime
or testamentary gift.1918
15.12 Proof of the donor’s intention to make a gift conditional on their death can be
established by the donor’s words in making the gift but can also be inferred from the
circumstances in which they make the gift.1919
15.13 As an example, in King v Dubrey, the Court of Appeal held that the donor’s statement
that “this will be yours when I go” did not show an intention to make a gift conditional
on her death within a limited period of time; rather, they were words of testamentary
intent.1920 This conclusion was supported by the fact that the donor, after making the
statement, signed two documents which indicated that she was trying to make a will
(albeit unsuccessfully).1921 By contrast, in Re Craven’s Estate the donor was found to
have made a valid DMC of money and shares to the donee before she underwent a
potentially fatal operation (which did, in fact, cause her death). 1922The transfer of
money and shares was held to be valid because it was made with the clear intention
to make the gift only if the donor died.1923
15.14 The donor must deliver dominion of the subject matter of the gift to the donee for a
DMC to be valid.
15.15 The court in King v Dubrey explained that “dominion”:
means physical possession of (a) the subject matter or (b) some means of
accessing the subject matter (such as the key to a box) or (c) documents evidencing
entitlement to possession of the subject matter.1924
15.16 Dominion can be delivered in different ways, depending on the subject matter of the
DMC.
(1) Dominion can mean physical possession of the subject matter of the DMC,
such as physical delivery of chattels, such as watches or jewellery.1925
(2) Delivery of some means of accessing the subject matter may constitute delivery
of dominion, for example, by the delivery of a key to a trunk containing the gift.1926
(3) Delivery of documents showing entitlement to possession of the subject matter
can also deliver dominion, a method which must be used for property which is
incapable of physical delivery, such as land. For example, delivery of a savings
bank book or a deposit book for the bank account;1927 delivery of a mortgage
deed for the mortgage debt and security; 1928delivery of the title deeds to
unregistered land for the land;1929 and, as has been recently decided, delivery of
a copy of the land register for registered land.1930
15.17 There are additional requirements to establish that delivery has occurred: the donor
must intend to part dominion with the property; the property must be delivered before
the donor dies; and the property must be delivered by the donor or their agent to the
donee or their agent.1931
15.18 In the 2017 Consultation Paper, we explained that a DMC is an exception to the
statutory formalities that are required to make valid gifts, which therefore presents a
risk of abuse. 1932These risks have long been recognised by the courts; for example, in
King v Dubrey,1933 the court highlighted the potential for fabrication by the donee due to
the lack of formalities, and the difficulties in disproving the donee’s evidence. Because
of the risk of abuse, the court emphasised that the doctrine should not be extended to
apply to a wide range of gifts.1934
15.19 We also identified several requirements under the doctrine that were unsettled at the
time of our Consultation Paper and lacked recent authority at the level of the appellate
courts:
(1) whether gifts of certain types of property can only be delivered in certain ways;
(2) the requirements of “delivery”; and
(3) how a DMC can be revoked.1935
15.20 We also raised the question as to whether, following the decision in King v Dubrey,1936
there exists a requirement that the donor did not have time to make a will in order for
their DMC to be valid.1937 Commentators have expressed opposing views on this point:
Aidan Briggs believes that the Court of Appeal implicitly inserted this requirement,1938
whilst Hugh Cumber argues that this has never been a requirement, and that there is
no reason for it to be one. 1939We concluded that there is indeed no requirement for the
donor to die so quickly that they did not have the opportunity to make a will: in King v
Dubrey, the court cited a case in which the donor did not die until six weeks after
making the DMC as an example of the contemplation of death in the near future for a
specific reason.1940
15.21 In the Consultation Paper we considered two options for reform of the doctrine of
DMC:
(1) codification in statute (which could include any reform to the doctrine necessary
to deal with areas of debate or uncertainty); or
(2) abolition of the doctrine.1941
15.22 We expressed the view that the doctrine should not be codified in statute. We did not
want to increase its prominence and promote its use by enshrining it in statute. We
also took the view that the (then recent) case of King v Dubrey1942 provided a clear, up-
to-date view of the law governing the doctrine, and the elements that it did not address
should be left to be decided by the common law on a case-by-case basis. We
believed this to be an advantage in that this approach retains some flexibility to the
doctrine.1943
15.23 We also considered in the Consultation Paper whether the doctrine should be
abolished. In our work leading to the Consultation Paper, most of the stakeholders we
engaged with were not in favour of retaining the doctrine. 1944We also noted that the
Scottish Law Commission recommended its abolition because DMCs were unknown
in practice in Scots law,1945 and it was consequently abolished in Scotland in 2016.1946
We recognised that even though DMCs are not unknown in England and Wales,
courts have been generally reluctant to uphold them.
15.24 A significant argument in favour of abolition is the risk of abuse presented by the
doctrine. Gifts given in this way are usually given as an oral statement by the donor
shortly before their death, and producing evidence of this can be difficult. The
formalities for will-making do not need to be complied with to make a valid DMC, and
so there is a greater risk of fraud and dispute than is the case for a gift in a will.
15.25 We further acknowledged in the Consultation Paper that in the modern day, there are
difficulties with delivery of dominion.1947 As physical certificates for registered land are
no longer used, we found it doubtful that registered land could be the subject of a valid
DMC as it was uncertain how dominion of the land might be delivered. Similarly,
people are now far less likely to carry around savings account books, instead opting to
manage their finances entirely online. We were unsure how dominion could be
handed over in these cases, where there is no physical book to deliver.
15.26 We nevertheless recognised that the doctrine serves a useful purpose in that it
“softens” the hard edges of formalities law, 1948and serves our overall project aim of
promoting testamentary freedom.
15.27 We recognised that a dispensing power would also operate to protect testators
against the possibility that statutory formalities may frustrate their intentions. However,
we explained that this doctrine and a dispensing power do not necessarily occupy the
same ground. A DMC requires delivery of dominion, whereas a dispensing power
would not. Further, the testator must be contemplating impending death to be able to
make a DMC; we do not propose this requirement in the operation of a dispensing
power. A dispensing power would therefore most likely be used in situations where a
testator set out their intentions in a document (which could include audio and video
recordings) long before their actual death, and would be used to ensure their
intentions were carried out following death. It would still be possible that a testator’s
document would not fall within the scope of the dispensing power, and in cases of
impending death, the doctrine of donationes mortis causa could assist the donor in
carrying out their testamentary intentions, where the dispensing power would not.1949
15.28 Finally, in the Consultation Paper we explained our view that following King v
Dubrey, 1950the law is sufficiently clear. We also recognised that there is a lack of
evidence demonstrating that DMCs cause issues in practice, with equal arguments for
and against abolition.
15.29 We therefore asked consultees on their views as to whether the doctrine of
donationes mortis causa should be abolished or retained.1951
15.30 Consultees were evenly split between being in favour of abolishing or retaining the
doctrine.1952
15.31 Some consultees who were in favour of abolition felt that DMCs undermined the
purpose of the formality requirements, which left the doctrine open to abuse and
increased the risk of fraud. They said that DMCs are a risk to testators and
beneficiaries because it is extremely difficult to establish the testator’s true intention. It
is usually the case that the only evidence comes from the donee because DMCs
themselves are normally oral statements made by the donor, shortly before their
death. They were concerned that this evidential uncertainty leads to a circumvention
of the safeguards in the law, making the doctrine an anomaly in the law of wills. They
felt that the doctrine itself is unclear and “confused in its very nature”1953 due to the
status of a DMC as neither a lifetime nor testamentary gift.
15.32 Other consultees felt that if a dispensing power and the ability to make electronic wills
were enacted, there would almost always be a way to give effect to a person’s
testamentary intentions without the doctrine. One consultee suggested that the only
situation in which a DMC could apply (but the dispensing power would not) would be if
the gift was given by unrecorded oral evidence; and, the consultee noted, this
situation presents a risk of fraud. Generally, consultees thought the doctrine would
therefore be unnecessary alongside reforms relating to the dispensing power and
electronic wills.
15.33 Consultees also raised concerns about the requirement of delivery of dominion. They
highlighted the uncertainty surrounding whether dominion of registered land can be
delivered after the enactment of the Land Registration Act 2002, which abolished the
requirement to issue land certificates. They also highlighted uncertainty about whether
dominion can be delivered over non-tangible property such as online bank accounts
and digital assets.
15.34 Consultees in favour of retaining the doctrine felt that it still had a place in English law.
They agreed that King v Dubrey 1954had sufficiently clarified the doctrine and its
application, and that it should therefore be retained to cover the situations in which a
testator’s final intentions might otherwise be frustrated. They believed that the doctrine
could provide individuals with the “freedom of choice in difficult circumstances”,1955 and
could help bring about a just result in situations where a testator might not have the
ability to make a disposition in any other way.
15.35 Some consultees argued that the risk of fraud associated with DMCs was overstated,
noting that DMC cases are dealt with by the court, and the courts are aware of the
potential for abuse of the doctrine. Further, they considered that any concerns about
fraud or undue influence can still be raised during the probate process.
15.36 In Rahman v Hassan,1956 the court considered whether registered land, in this case a
house and two flats, could be the subject of a valid DMC. This point had not previously
been decided in the case law.1957
15.37 An earlier case, Sen v Headley, 1958demonstrated that the delivery of the title deeds of
unregistered land could amount to successful delivery of dominion, but did not
address whether dominion could also be delivered over registered land. At the time
Sen v Headley was decided, HM Land Registry issued either a land certificate or
charge certificate as evidence of title to registered land. However, this practice ceased
following the implementation of the Land Registration Act 2002. The issue of whether
dominion of registered land could be delivered in the absence of physical title deeds
was subsequently raised in Davey v Bailey,1959 but the court did not engage with it as
the DMC was found to be invalid on different grounds.
15.38 In Rahman v Hassan,1960 Judge Paul Matthews (sitting as a Judge of the High Court)
took the view that the decision in Sen v Headley 1961made clear that in principle a DMC
can be made concerning all types of land, whether registered or unregistered. In
particular, he considered that there was “no conceptual reason to distinguish between”
unregistered and registered land for the purposes of the doctrine, and that “to do so
would be to create a further anomaly”.1962
15.39 The court noted that the registered land certificate, although no longer in itself the title
to the property (since the coming into force of the Land Registration Act 2002), is
properly regarded as indicium1963 of title for the purposes of making a DMC. 1964The same
reasoning was applied to the leases and copies of the register showing the titles for
the two flats. The court cited Woodard v Woodard,1965 stating that “the function of the
handing over of some document or thing to the donee is evidential rather than
transitive”, 1966meaning that just because the leases were registered does not mean that
the leases themselves should not be indicia1967 of title. It is the intention with which the
document was handed over which should be examined.
15.40 Previous cases concerning DMCs of bank accounts were heard in a time when these
accounts were dealt with using physical documents, such as savings bank books or
deposit bank books. These documents demonstrated indicia of title and their delivery
would satisfy the “delivery of dominion” requirement. 1968Similarly, DMCs of company
shares were effective when the shares that were registered to the donor were
transferred, under the required legal formalities, to the donee before the donor’s
death. 1969However, in Ward v Turner, delivering the purchase receipts of the shares
was found to be insufficient delivery of dominion;1970 “something amounting to delivery”
is necessary if the shares are not legally transferred before the donor’s death.1971
15.41 But the shares owned by the donor in Rahman v Hassan were held in a
dematerialised form in an online account. The court therefore dealt with the share
account and bank accounts together.
15.42 Judge Matthews discussed the “locked box” DMC cases1972 and applied this reasoning
to online accounts. He explained that:
just like a key, the device/login and password are a ‘means of accessing the subject
matter’ of a gift, and so for this purpose amount to ‘dominion’.1973
Therefore, by informing the donee of the login details and passwords for the online
accounts, together with physically handing over the associated security devices (such
as login devices or PIN readers) and bank cards, the donor had intended to provide
the donee with “an indicium of title to the entire contents” of the accounts. 1974The donor
also had “put it out of his power to further deal with the accounts” as the donee now
had complete control of them.1975 This therefore amounted to delivery of dominion of the
accounts.1976
15.43 We agree with consultees that the doctrine of donationes mortis causa is anomalous,
and that it could be used in a way that circumvents the safeguards that apply to
lifetime and testamentary gifts. We nevertheless do not recommend its abolition.
15.44 Although consultees were split between favouring abolishing and retaining the
doctrine, we have not been convinced that the doctrine should be abolished. We
believe that the best course is to leave the doctrine unchanged, retaining it in its
current form.
15.45 The policy intention of the doctrine is to give effect to the testator’s intentions in very
specific and limited circumstances. We think it continues to have a place in achieving
that aim.
15.46 We think the doctrine continues to have a role in protecting testamentary freedom
even in the light of our recommendation (Recommendation 12) that the court should
be given a power to dispense with the formality requirements for a valid will in
individual cases. We think the doctrine and the dispensing power will complement
each other, with each covering slightly different circumstances.
15.47 The dispensing power will apply where a testator has attempted to make a will in
some form but has failed to comply with the formality requirements for a valid will.
That is, in order for the dispensing power to apply, the testator will have to have made
some form of record, such as a holograph will1977 or a written message, in order to
express their testamentary intentions. Although the dispensing power may often be
used in cases where the testator was near to death at the time that the record was
made, it will not be a requirement that the testator is contemplating their imminent
death and seeking to make a gift conditional on it. Furthermore, the dispensing power
will not apply where a testator makes a deathbed gift, seeking to make a gift rather
than attempting to make a will.
15.48 The doctrine of donationes mortis causa will continue to be necessary for the
situations where a person is making a gift on their deathbed, if not literally, then in the
sense that they are dying and contemplating their death. It will apply where the
testator has not made a document or other record explaining their testamentary
wishes. The doctrine will address the situations where, possibly without knowledge of
the law and its requirements, a person is doing all that they intuitively think is
necessary to make a gift which is conditional on their death.
15.49 The risk of fraud or other abuse DMCs pose is an important consideration. But we do
not think the doctrine, as it is currently described and applied by the courts, results in
abuse or fraud. The courts require convincing proof that the requirements are
satisfied. They assess the evidence of donees strictly, requiring their evidence to be
unequivocal. Given the involvement of the courts, and their careful approach, we do
not think that abolishing the doctrine is necessary to safeguard testators or their
beneficiaries.
15.50 We also do not think that we should recommend change to the doctrine, such as to
limit its application or clarify its requirements. As we explain at paragraphs 15.36 to
15.42 above, since the Consultation Paper the courts have provided more certainty
over the requirement that the donor deliver dominion of the property to the donee,
including how the doctrine applies in the case of registered land and online accounts.
We consider that the doctrine is sufficiently certain that legislative intervention would
be unnecessary or even unhelpful. In our view, the doctrine of donationes mortis
causa is best left to the common law, under the watchful eye of the courts.
16.1 A will is a personal and private document, in which a person expresses their wishes
about what should happen to their property after their death. However, the person
may want to use it to say more than what they want to happen to their assets when
they die.
16.2 We considered in the Consultation Paper three other uses to which people might put
their will.
(1) We discussed the issue of the transmission of digital assets on death.
Considering that any reform in this area would most likely be directed at user
agreements, we concluded that it was outside the scope of the wills project.1978
Nevertheless, we asked a question of consultees to gather evidence about the
need for a separate project on the transfer of digital assets. 1979Consultation
responses to this question were considered together with the responses to the
Law Commission’s 14th Programme of Law Reform, to inform the
Commission’s decision about a potential project on the transmission of digital
assets on incapacity or death. Because this question falls outside the wills
project, we do not consider consultees’ responses to it in this Report.
(2) We also explained that a person might include in their will instructions for their
funeral and whether they should be buried or cremated. However, we explained
that, at the time of the Consultation Paper, we were considering the need for a
separate project in the area of burial and cremation as a consequence of our
consultation on the 13th Programme of Law Reform. Accordingly, we did not
ask any consultation questions on the issue.1980 The Law Commission is now
undertaking a separate project on Burial, Cremation and New Funerary
Methods, made up of three sub-projects.1981 The issue of whether and how a
person might be able to make binding wishes as to what happens to their body
after they die will be addressed in the third sub-project of that review, which will
commence following the completion of the first sub-project, concerning burial
and cremation law.1982
(3) Finally, we explained that testators may use their wills to appoint guardians for
their minor children. We noted that guardianship appointments are required to
be dated, but wills are not. It is this point that we will consider in more detail in
this chapter. However, as we explain, we do not recommend any reform to the
law on this point.
16.3 Section 5 of the Children Act 1989 makes provision for people to appoint guardians for
their minor children in the event of their death. Testators often make such
appointments in their wills. Under section 5(5), such an appointment must be in
writing, dated, and signed by the testator to have effect.
16.4 Because wills are not required to be dated under section 9 of the Wills Act 1837, in the
Consultation Paper we noted that an appointment of a guardian made in an otherwise
valid will could fail if the will was not dated.1983
16.5 We explained that the requirements could in theory be made consistent. But we did
not think it would have any practical effect. We understood from stakeholders that
most wills, including homemade wills, are in fact dated. We also had not heard of any
problems arising from the inconsistency in the requirements. 1984Although we
provisionally concluded that change was unnecessary, we nevertheless asked
consultees if problems arose in practice.1985
16.6 Of the consultees who responded to this question, only one said that they were aware
of instances where the different requirements had caused problems in practice. The
overwhelming majority of consultees said they were unaware of any problems arising
in practice, with a few other consultees making other comments.1986
16.7 Consultees who said they were unaware of problems included the Bar Council, the
Law Society, and the Chancery Bar Association. Some consultees who said they were
unaware of any problems explained that most wills are dated in any event. Several
consultees, including the University of Law Birmingham and two solicitors’ firms,1987
commented that even homemade wills are generally dated. Penningtons Manches
LLP noted that problems could only arise if the testator dies and no one else alive has
parental responsibility for the child: an appointment under section 5 of the Children Act
1989 will only take effect if the person making the appointment dies and the minor has
no other parent with parental responsibility, no person with whom the child is to live
under a child arrangements order and no special guardian.
16.8 Three consultees, the Bar Council, The Notaries Society of England and Wales, and
Northamptonshire Law Society, were unaware of any difficulties but thought that the
requirement to date a guardianship appointment could cause difficulties for a small
number of undated homemade wills. However, the Bar Council commented that it had
never seen a guardianship appointment in a homemade will.
16.9 One solicitor, Lisa Davies, said that she was aware of instances of difficulty. She
explained that when wills are dated, there is often a conflict between the date on the
front of the will and the date of attestation. She explained that this can cause problems
when a will appoints a guardian.
16.10 Another solicitor, Fiona Heald, suggested that the requirement for a guardianship
appointment to be dated should be abolished. The TAS Network suggested that the
law governing wills could be amended to require that wills be dated.
16.11 STEP and Richard Frimston 1988explained that under the European Union Regulation
Brussels II,1989 courts in the country where the child is habitually resident had
jurisdiction in relation to parental responsibility. 1990Accordingly, they observed that
guardianship appointments under section 5 of the Children Act 1989 are only possible
for children who live in England and Wales; conversely, “there is no such mechanism”
for parents to appoint guardians if the child is domiciled in England and Wales but not
habitually resident here.
16.12 There is little evidence of problems arising in practice from the requirement that
guardianship appointments need to be dated but wills need not be.
16.13 To require wills to be dated in order to be valid would be a significant change to the
formality requirements. Although most wills in practice are dated, invalidating any will
which is not would be a disproportionate response to the possibility that a
guardianship appointment made in a will is not valid because it is not dated.
16.14 We also do not think that we can or should recommend reform to abolish the
requirement to date guardianship appointments, because such a recommendation is
outside the scope of wills law.
16.15 STEP and Richard Frimston made the point that private international law regulates
wills and the appointment of guardians (and parental responsibility generally)
differently. A will is formally valid according to the law of England and Wales if it is
made in compliance with the requirements of the jurisdiction of the testator’s domicile,
habitual residence or nationality, or the jurisdiction where the will was executed (or, in
relation to immovable property, the jurisdiction where the property is located).1991
Conversely, parental responsibility and guardianship appointments are governed by
the law of the jurisdiction of the child’s habitual residence (law which, since the UK’s
withdrawal from the European Union which took place after our 2017 consultation, is
now governed by the Hague Convention of 1996 rather than Brussels II).1992 To address
this point, the underlying private international law governing either wills or parental
responsibility would need to change. However, the private international law governing
wills is outside the scope of our project. So too is the private international law of
parental responsibility.
16.16 We therefore do not recommend any reform in relation to the appointment of
guardians in wills.1993
17.1 We recommend that the test of capacity in the Mental Capacity Act 2005 should
apply to testamentary capacity.
17.2 We recommend that the MCA Code of Practice should reference and explain the
elements of the Banks v Goodfellow test in its guidance on testamentary capacity.
Paragraph 2.103
17.3 We recommend that the statutory presumption of capacity in the Mental Capacity
Act 2005 should apply in the testamentary context.
Paragraph 2.116
17.4 We recommend that the rule in Parker v Felgate should be retained with respect to
capacity.
Paragraph 2.128
17.5 We recommend that there should be a code of practice on testamentary capacity
issued under the MCA that -
(1) anyone preparing a will, or providing an assessment of capacity, in their
professional capacity or for remuneration, should be required to have regard
to; and
(2) is developed and periodically reviewed as determined by the Lord
Chancellor.
Paragraph 2.186
17.6 We recommend that the code should include guidance on -
(1) when capacity needs to be formally assessed;
(2) who should assess capacity;
(3) how capacity should be assessed;
(4) instructions from solicitors and will writers to any third-party assessors about
assessing capacity;
(5) record keeping; and
(6) how long a formal capacity assessment should take.
17.7 We recommend that the code should also include other information on
testamentary capacity, including the test, the presumption of capacity, when the
testator must have capacity, and how testators should be supported to have
capacity.
Paragraph 2.187
17.8 We endorse the recommendation in our report on Mental Capacity and Deprivation
of Liberty that section 4(6) of the Mental Capacity Act 2005 should be amended to
require that anyone making a best interests determination must give particular
weight to the person’s wishes and feelings.
Paragraph 3.82
17.9 We recommend that the age at which a statutory will can be made for a person
should be reduced from 18 to 16 years, in order to remain consistent with the age
of testamentary capacity.
Paragraph 3.84
17.10 We recommend that the limitation in paragraph 4(4) and (5) of Schedule 2 to the
Mental Capacity Act 2005 should be removed such that a statutory will authorised
by the Court of Protection has effect in relation to -
(1) immovable property outside of England and Wales, and
(2) any other property or matter, other than immovable property, where the
person is domiciled outside of England and Wales and the question of their
testamentary capacity does not fall to be determined in accordance with the
law of England and Wales.
Paragraph 3.86
17.11 We endorse the recommendation made by the Law Commission in its report on
Mental Capacity and Deprivation of Liberty for a scheme of supported decision-
making to be introduced. This general scheme should apply to will-making.
Paragraph 4.112
17.12 We recommend that the requirement in section 9 for witnesses to attest when they
sign the will in the presence of the testator should:
(1) be retained in a new Wills Act; and
(2) apply when witnesses acknowledge their signature in the presence of the
testator.
Paragraph 5.99
17.13 We recommend that provision for privileged wills should be retained, but should be
confined in its scope to:
(1) those serving in the British Armed Forces on active service; and
(2) civilians who are subject to service discipline (as defined in the Armed
Forces Act 2006) who, if they were serving in the armed forces, would have
been on active service.
Paragraph 5.138
17.14 We recommend that a power to dispense with the formality requirements
necessary for a valid will should be introduced in England and Wales.
17.15 We recommend that this dispensing power should:
(1) be exercisable by the court;
(2) apply to records demonstrating testamentary intention (including electronic
documents, as well as sound and video recordings); and
(3) apply when the deceased person dies after the coming into force of the
power, including to records pre-dating the enactment of the power.
Paragraph 6.74
17.16 We recommend that a gift made in a will to the person who signs the will on the
testator’s behalf, or to their spouse or civil partner, should be void, but the will
should remain otherwise valid.
Paragraph 7.24
17.17 We recommend that a gift made in a will to the cohabitant of a witness to the will,
or to the person who signs the will on the testator’s behalf, should be void, but the
will should remain otherwise valid.
Paragraph 7.65
17.18 We recommend that the court should be given the power to save a gift to a
witness, a person who signs the will on the testator’s behalf, or such a person’s
spouse, civil partner, or cohabitant that would otherwise be void, if the court
considers it just and reasonable to do so, having regard to (among other things)
the conduct of the person in relation to the execution and/or proving of the will.
Paragraph 7.92
17.19 We recommend that electronic wills should be capable of being formally valid on
an equal basis to paper wills.
Paragraph 8.210
17.20 We recommend that, in addition to complying with the ordinary requirements for
making a formally valid will, in order for electronic wills to be formally valid, it
should be required that a reliable system is used such that -
(1) the testator (or person signing on the testator’s behalf) and the witnesses
are linked to their signatures at the time of signing;
(2) the original or authentic will is identifiable from copies of it; and
(3) the original or authentic will is protected from unauthorised alteration or
destruction.
17.21 We recommend that, for electronic wills, the requirement of the presence of the
person signing on behalf of the testator and the witnesses should be capable of
being satisfied by remote presence.
Paragraph 8.211
17.22 We recommend that -
(1) a new Wills Act should contain a regulation-making power, exercisable by
the Secretary of State, under which regulations can be made to detail how
electronic wills may or must fulfil the formality requirements;
(2) the Secretary of State should be required to consult before exercising this
power; and
(3) this power should be subject to the negative resolution procedure.
Paragraph 8.213
17.23 We recommend that the rules applying to how wills can be altered, revived and
revoked should apply to electronic wills, and that in particular electronic wills
should be capable of revocation by destruction.
Paragraph 8.214
17.24 We recommend that the court should be able to infer that a will was made as a
result of undue influence where there are reasonable grounds to suspect undue
influence, considering (among other matters) the conduct of the person claimed to
have exerted undue influence in relation to the will, whether there was a
relationship of influence between that person and the testator, and the
circumstances in which the will was made.
Paragraph 9.164
17.25 We recommend that the requirement that the testator has knowledge and approval
of the contents of their will should require that the testator understands that they
were making a will, and the content and effect of their will.
Paragraph 9.220
17.26 We recommend that the rule in Parker v Felgate that applies to knowledge and
approval should be retained.
Paragraph 9.221
17.27 We recommend that the age of testamentary capacity should be lowered to 16. Paragraph 10.65 |
17.28 We recommend that:
(1) the Family Court should have the power to authorise an underage child to
make, amend, revoke or revive a will in particular terms;
(2) the common law test should be used by the court to assess whether the
child is competent to make, amend, revoke or revive the will as proposed;
(3) there should be no age requirement for a child to apply to be authorised to
make, amend, revoke or revive a will; and
(4) the power should not apply retrospectively.
Paragraph 10.90
17.29 We recommend that a new Wills Act should include an interpretative provision to
the effect that, where the testator has made a gift to a non-charitable body, which
since the date of the will has merged with another or been reconstituted, the gift
should take effect as one to the successor body, unless a contrary intention
appears by the will.
Paragraph 11.154
17.30 We recommended that the power of the court to rectify a will, contained in section
20 of the Administration of Justice Act 1982, should be extended to allow a will to
be rectified where the will fails to achieve the testator’s intentions because the
words in the will do not have the meaning or effect intended by the testator, to the
same degree that the court has the power to rectify a unilateral document such as
a settlement.
Paragraph 11.224
17.31 We recommend that dispositions of property by donees acting under a Lasting
Power of Attorney should be included within the scope of the exception to
ademption currently in paragraph 8 of Schedule 2 to the Mental Capacity Act
2005.
Paragraph 12.60
17.32 We recommend that a specific gift of property, where the subject matter of the gift
is made subject to a contract for sale (including a conditional or statutory contract)
or an option to purchase, should not be adeemed, subject to a contrary intention
appearing in the will. The beneficiary should be entitled to property which
represents the gifted property at the testator’s death, or the purchase price subject
to any costs.
Paragraph 12.106
17.33 We recommend that, where the testator dies and the subject matter of a gift is
destroyed or lost in circumstances where it cannot be determined which happened
first, it should be presumed that the testator died before the property was
destroyed or lost, subject to a contrary intention appearing in the will.
Paragraph 12.152
17.34 We recommend that the rule that a marriage or civil partnership revokes a will, in
sections 18 and 18B of the Wills Act 1837, should be abolished.
Paragraph 13.165
17.35 We recommend that the Inheritance (Provision for Family and Dependants) Act
1975 should be amended to provide that property that is subject to a mutual wills
arrangement be treated as part of the deceased’s net estate so that such property
will fall within the scope of the deceased’s property out of which an order for
financial provision can be made.
Paragraph 14.63
Appendix 1: Glossary
In this glossary, references to other words and terms contained in the glossary are in bold.
“Ademption”: where a gift or disposition in a will does not take effect at the testator’s
death because the gifted property is no longer in the testator’s estate, or the nature of the
property has changed. A gift which fails by ademption has adeemed.
“Administrator”: a person who by grant of letters of administration is authorised to
administer a deceased’s estate.
“Attorney”: the term we used in the Consultation Paper to describe a person appointed under
a Lasting Power of Attorney under the Mental Capacity Act 2005 to make decisions on
behalf of another person (the donor). See donee.
“Beneficial interest” or “equitable interest”: the right to enjoy or benefit from property by using
it or receiving any proceeds of sale. It can also be described as having equitable title to
property, in contrast to legal title. A person can have a beneficial interest under a trust. A
person may have both a beneficial and legal interest in the same property.
“Beneficiary”: a person gifted money or property under a disposition in a will. The term is
also used to describe a person who has a beneficial interest in property under a trust.
“Bequest”: strictly, a gift in a will of personal property. See also legacy.
“Capacity”: the legal ability or authority to do something. It often refers to mental capacity,
meaning the cognitive ability required by the law to be able to make a decision or take an
action. See testamentary capacity.
“Chattel”: personal property which is a physical object, such as a piece of furniture or
jewellery.
“Child” or “minor”: a person who is under the age of 18. However, “child” may also be used
to describe the relationship between two people, for example, the testator’s child, but the
child may be an adult.
“Codicil”: a subsequent addition or amendment to a will.
“Construction”: the act of interpreting a will.
“Constructive trust”: a trust that arises without having been expressly created by the parties
and is imposed by the law.
“Consultation Paper”: Making a Will (2017) Law Commission Consultation Paper No 231.
See also Supplementary Consultation Paper.
“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 for themselves.
“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 for themselves.
“Devise”: strictly, a gift in a will of real property.
“Dispensing power”: a provision which would enable a court to recognise a will as valid even
though the formality requirements had not been complied with.
“Disposition”: the making of a gift in a will or the transfer of property to another party during
life.
“Donatio mortis causa” or (plural) “donationes mortis causa”: a doctrine under which a gift is
made in contemplation and conditional on death. A donatio mortis causa cannot be
categorised as either a lifetime gift or testamentary gift: it is a hybrid.
“Donee”: a person appointed under a Lasting Power of Attorney under the Mental
Capacity Act 2005 to make decisions on behalf of another person (the donor). In the
Consultation Paper, we instead used the term attorney.
“Donor”: a person appointing someone (a donee) under a Lasting Power of Attorney
under the Mental Capacity Act 2005 to make decisions on their behalf.
“Electronic will”: an electronically executed will or a fully electronic will.
“Electronically executed will”: a will executed (or the formalities completed) using electronic
means.
“Electronic witnessing”: where a witness participates remotely in the execution of a will, via
electronic means such as videoconferencing.
“Estate”: a person’s property, money and possessions on death. (Not to be confused with
the concept of estate in property law, which is a way of categorising types of ownership
interests depending on how long they are to last.)
“Execution”: the final step in making a will (or other legal document), which must be done in
compliance with the formality requirements set out in the law for the will (or other legal
document) to be formally valid.
“Executor”: a person appointed by a testator in their will to administer their estate following
their death.
“Ex gratia”: translating as “by favour”, in referring to a payment it is one made voluntarily, not
because of a legal obligation.
“Family provision”: the statutory scheme under the Inheritance (Provision for Family and
Dependants) 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.
“Fee simple”: often called a freehold estate, a type of ownership interest in property which is
the highest a person can own, and which can potentially last forever.
“Fee tail”, “entail” or “estate tail”: a type of ownership interest in property which lasts so long
as the person who owns it (called the tenant in tail) or any of their direct descendants
survive. It passes automatically on the death of the tenant in tail to their direct descendant,
and so on. If at any point the original tenant’s direct descendants fail to have their own direct
descendant, the estate ends, and the property goes back (on reversion) to the person who
granted the fee tail, or (on remainder) to someone specified by the person who granted it. A
fee tail essentially creates a succession of life interests in the original tenant in tail and their
descendants. Fees tail can no longer be created.
“Formalities” or “formality requirements”: the formal requirements for a valid will currently set
out in section 9 of the Wills Act 1837, including that the will must be in writing, signed by the
testator, and witnessed.
“Fully electronic will”: an electronically executed will which is then stored and admitted to
probate solely as an electronic document.
“Gift”: any disposition (either a devise or bequest/legacy) under a will.
“Grant of letters of administration”: the authority granted by a court to a person or number of
people to allow 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 their will.
“Grant of representation”: a generic term for a grant of probate or grant of letters of
administration.
“Heir at law”: in the past, a deceased’s real estate would pass to their heir at law, and their
personal estate would pass to their next of kin. A person’s heir at law was governed by
priority rules, with priority to any legitimate male child or their heirs. If a person had no
legitimate male child or grandchildren from a legitimate male child, any legitimate female
children would take collectively as a single heir.
“Inter vivos”: a legal term used to describe documents (such as contracts) or transfers (such
as gifts) that are made and take effect during a person’s lifetime.
“Intestacy”: where a person dies without having made a valid will. The deceased is said to
have died “intestate”.
“Lasting Power of Attorney” or “LPA”: a legal document under which a person (a donee) can
be appointed to make decisions on behalf of a person (a donor) who lacks the mental
capacity necessary to make their own decisions regarding their personal welfare or property
and affairs.
“Legacy”: strictly, a gift in a will of personal property. See also bequest.
“Legal interest”: where a person has a legal interest in property, or is the legal owner, this
means that they have 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. A person often has both a legal and beneficial interest in the property, and
the starting presumption is that a person with the legal interest will also have the beneficial
interest.
“Life interest” or “life estate”: a type of ownership interest in property which only lasts as long
as the life of the person who has it. It can now only exist as an equitable interest in
property, not a legal interest.
“Obiter”, “obiter dictum” or “obiter dicta”: a judge’s comments (in a judgment) which are not
essential to their decision, so which are not binding in relation to other decisions.
“Office of the Public Guardian”: the body which carries out functions under the Mental
Capacity Act 2005, including in registering Lasting Powers of Attorney.
“Official Solicitor”: the officer of the court who acts for a person who is unable to represent
themselves through a lack of capacity, where no other suitable person or agency is able
and willing to act.
“Personal property”, “personalty” or “personal estate”: one of two types of property, meaning
property that is not real property, and which includes money, chattels, stocks, and shares.
“Personal representative”: a generic term for either an executor or an administrator.
“Power of appointment”: a type of power given to a person to make a disposition of
property which is not their own. In granting the power, the settlor of the power can require it
to be exercised only by deed during life, or only to be exercised by will. In the latter case, it is
a testamentary power of appointment. A power of appointment might also be created by a
testator (as the settlor) in their will, to be given to another person. A power of appointment
can be general, special or hybrid.
A “general power of appointment”: a power to appoint, or to make a disposition of the
property to, anyone in the world, including to oneself.
A “special power of appointment”: a power to appoint, or to make a disposition of the
property to, one among a specific class of possible people.
A “hybrid power of appointment”: a power to appoint, or to make a disposition of the
property to, anyone except an identified person or class of people.
“Predatory marriage”: where a person marries someone, often someone who is elderly or
who lacks the mental capacity to marry, as a form of financial abuse.
“Probate”: the legal process under which a will is proved as valid.
“Propound”: to advance a will as authentic. The propounder of a will claims that a particular
document is the testator’s final will and that the provisions of that document should govern
the distribution of the testator’s estate.
“Propounder”: the person who propounds the will.
“Proprietary estoppel”: where one person has made a promise to another, and that other
person has acted to their detriment in relying on that promise. In the testamentary context, it
will be a promise from the testator that the person will inherit property under their will.
“Real property”, “realty” or “real estate”: one of the two types of property, meaning land and
buildings or things attached to them.
“Rectification”: the process of correcting a legal document, most commonly because of a
typographical error.
“Residuary estate” or “residue”: part of the deceased’s estate that has not been specifically
disposed of in their will. The residuary estate also includes any property which has been
specifically disposed of where that disposition has failed, for example, due to ademption.
“Revocation”: the formal act of withdrawing a valid will. A will is, by its very nature, revocable
by the testator until their death.
“Statutory will”: a will made by the Court of Protection on behalf of a person who lacks
capacity.
“Supplementary Consultation Paper”: Making a Will: A Supplementary Consultation Paper
(2023) Law Commission Consultation Paper No 260. See also Consultation Paper.
“Testamentary capacity”: where a person has capacity to make a will.
“Testator”: a person who has made a will. 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”: where a person or persons (the trustees) hold the legal interest in property for the
benefit of others (who have the beneficial interest) who are known as the beneficiaries of
the trust. The trustees may themselves also be beneficiaries.
“Will writer”: professionals involved in the drafting of wills, acting otherwise than as solicitors.
If there are no family members alive who can inherit, the estate will pass to the Crown (or the Duchy of
Lancaster or the Duke of Cornwall) as bona vacantia: Administration of Estates Act 1925, s 46(1)(vi).
For example, Legacy Futures states that in the 2023/24 financial year, the total legacy income in the UK was
£4.1 billion. It also reports that, for the top 1,000 charities in England and Wales, income from gifts in wills
amounted to 28% of their fundraising income and 14% of their total income: Legacy Futures, Data
Dashboards, https://www.legacyfutures.com/resources/data-dashboard/ (last visited 31 March 2025).
B Sloan, Borkowski’s Law of Succession (4th ed 2020) pp 52 and 53.
Above, p 53. And, under the current law, it would be revoked by them marrying or entering a civil
partnership.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 1-006.
R Jennings, Jarman on Wills (8th ed 1951) pp 25 to 26, as cited in A Learmonth, J Clarke, K Shuman, C
Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 1-001.
B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 49; Wills Act 1837, s 1. The court has discretion to
admit to probate wills which do not dispose of property under the Administration of Justice Act 1932, s 2:
see A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 37-
006. However, a will which does not dispose of property appears to not be admissible to probate: B Sloan,
Borkowski’s Law of Succession (4th ed 2020) p 49, and A Learmonth, J Clarke, K Shuman, C Ford and T
Fletcher, Theobald on Wills (19th ed 2021) para 1-001, both citing Re Berger (Deceased) [1990] Ch 118,
[1989] 2 WLR 147, at 129. However, other authorities state that a will that only appoints executors is
admissible to probate: see A Learmonth, C Ford, J Evans-Gordon, Williams, Mortimer and Sunnucks on
Executors, Administrators and Probate (22nd ed 2023) para 10-03, citing (among others) Brownrigg v Pike
(1882) 7 PD 61.
See generally B Sloan, Borkowski’s Law of Succession (4th ed 2020) ch 11.
In the latter case, it is a grant of administration with the will annexed.
See generally B Sloan, Borkowski’s Law of Succession (4th ed 2020) ch 11.
See eg B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 390; A Learmonth, C Ford, J Evans-
Gordon, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (22nd 2023) para 11-
02.
For example, the test for capacity was first outlined in Banks v Goodfellow (1869-70) LR 5 QB 549.
For detail about this history of the project, see Consultation Paper, paras 1.4 to 1.6.
Government of Wales Act 2006, s 108A, paras 1 and 3 of Sch 7B.
Government of Wales Act 2006, para 3(4) of Sch 7B.
Celebrating Marriage: A New Weddings Law (2022) Law Com No 408.
By the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (SI 2020 No
952), introduced under the Electronic Communications Act 2000, s 8.
Applying to wills made between 31 January 2020 to 31 January 2024: Above, art 1, and Wills Act 1837
(Electronic Communications) (Amendment) Order (SI 2022 No 18), art 2. The provision for electronic
witnessing only applied to s 9(c) and 9(d); therefore, any person signing on behalf of the testator under s
9(a) continued to be required to be in the testator’s physical presence.
We discuss the rule that marrying or forming a civil partnership revokes a will in detail in Ch 13.
Recommendation 6, endorsing Recommendation 40 of our report on Mental Capacity and Deprivation of
Liberty (2017) Law Com No 372.
Recommendation 9, endorsing Recommendation 42 of our report on Mental Capacity and Deprivation of
Liberty (2017) Law Com No 372.
Recommendation 23. We also recommend, in Ch 3, that the Court of Protection should also be able to order
a statutory will be made on behalf of a 16- or 17-year-old: see Recommendation 7.
From Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, [1985] 3 WLR 830.
Consultation Paper, Consultation Question 1.
Of those responding to Consultation Question 1, 70% disagreed, 20% agreed, and 11% expressed other
views.
See eg Oliver v Oliver [2024] EWHC 2289 (Ch).
See eg Wills Act 1837, ss 1 and 9; and draft Bill, cls 6 and 23(1).
We recommend that the Rules should be amended to enable the child applicant to conduct proceedings
without a children’s guardian if the existing conditions are established: see Family Procedure Rules 2010 (SI
2010 No 2955), rr 16.4, 16.6, and 16.23 to 16.26.
Consultation Paper, Consultation Question 2; Supplementary Consultation Paper, Consultation Question 7.
The Society of Trust and Estate Practitioners.
R Harding, E Ta§cioglu and M Furgalska, Supported Will-Making: A Socio-Legal Study of Experiences,
Values, and Potential in Supporting Testamentary Capacity (2019), https://legalcapacity.org.uk/wp-
content/uploads/2019/09/SupportedWillMaking_FinalReport_2019_web.pdf (last visited 31 March 2025).
Or, if the testator loses capacity between giving instructions for their will and executing the will, at the time of
giving instructions, according to the rule in Parker v Felgate: see para 2.118 below.
A person’s capacity to make a will can also be assessed - again prospectively - by the Court of Protection
in relation to an application to make a statutory will on behalf of the person.
D Bedford and J Brook, “Reform of testamentary capacity: the hidden pitfalls of replacing Banks v
Goodfellow with the Mental Capacity Act 2005” (2024) 140 (Jan) Law Quarterly Review 34, 35.
M Munro and A Newhall, “Financial exploitation in the Twilight Zone - Capacity, vulnerability and
safeguarding” (May 2023) Farrer & Co, https://www.farrer.co.uk/news-and-insights/financial-exploitation-in-
the-twilight-zone--capacity-vulnerability-and-safeguarding/ (last visited 31 March 2025).
Boyse v Rossborough (1857) 10 ER 1192, 1210.
Department for Constitutional Affairs, Mental Capacity Act 2005 Code of Practice (2007).
[2010] EWHC 408 (Ch), [2010] 1 WLR 2020.
With the third and fourth limb possibly being one: see para 2.32 below.
Banks v Goodfellow (1870) LR 5 QB 549.
See the glossary for the meaning of “propounder”.
Consultation Paper, para 254, citing Re Walker [2014] EWHC 71 (Ch), [2015] WTLR 493 at [21] to [25].
R (on the application of SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] 1 WLR
1449.
UN Committee on the Rights of Persons with Disabilities, General Comment No 1 Article 12: Equal
Recognition before the Law (2014) paras 14 and 15.
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, Achieving CRPD Compliance: 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? (2014) 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 62, 65.
See Fischer v Diffley [2013] EWHC 4567 (Ch), [2014] WTLR 757.
[2014] EWHC 71 (Ch), [2015] COPLR 348.
Banks v Goodfellow (1870) LR 5 QB 549.
Consultation Paper, para 2.55.
Consultation Paper, para 2.56.
Consultation Paper, para 2.57.
Consultation Paper, para 2.60.
Banks v Goodfellow (1870) LR 5 QB 549.
Consultation Paper, paras 2.33 to 2.36.
Consultation Paper, paras 2.41 to 2.42, 2.76 and 2.77.
Consultation Paper, paras 2.37 and 2.79.
[2013] EWCA Civ 9, [2013] WTLR 453.
[2006] EWCA Civ 449, [2006] WTLR 1059.
Consultation Paper, paras 2.40, and 2.78 to 2.80.
Hoff v Atherton [2004] EWCA Civ 1554, [2005] WTLR 99. See Consultation Paper, para 2.81.
(1870) LR 5 QB 549, 565.
Consultation Paper, Consultation Question 3.
Consultation Paper, para 2.67.
Consultation Paper, Consultation Question 4.
Consultation Paper, Consultation Question 5.
Of those responding to Consultation Question 3, 54% agreed, 28% disagreed, and 17% expressed other
views.
Of those responding to Consultation Question 4, 58% agreed, 22% disagreed, and 20% expressed other
views.
67.5% of those responding to Consultation Question 5.
58% of those responding to Consultation Question 5.
55% of those responding to Consultation Question 5.
James v James [2018] EWHC 43 (Ch), [2018] COPLR 147; Re Byford (Deceased) [2019] EWHC 646 (Ch);
Gardiner v Tabet [2021] EWHC 563 (Ch); Re Clitheroe [2021] EWHC 1102 (Ch), [2021] COPLR 380; Skillett
v Skillett [2022] EWHC 233 (Ch); Baker v Hewston [2023] EWHC 1145 (Ch); Wilkinson v Hicken [2023]
EWHC 1983 (Ch); Re Jones (Deceased) [2023] EWHC 1457 (Ch); Biria v Biria [2024] EWHC 121 (Ch) at
[96]; Leonard v Leonard [2024] EWHC 321 (Ch); Davies v Watts [2024] EWHC 1177 (Ch) at [24]; and Bond
v Webster [2024] EWHC 1972 (Ch) at [464].
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 4-004.
R Barlow KC, R Wallington, S Meadway, J MacDougald and J Kirby, Williams on Wills (11th ed 2021) para
4.6.
In Hughes v Pritchard [2022] EWCA Civ 386 at [62], the case proceeded on the basis that Banks applies but
the issue was not substantively considered. This approach was followed in Oliver v Oliver [2024] EWHC
2289 (Ch) at [105].
Referred to as between Chancery and Court of Protection lawyers in Baker v Hewston [2023] EWHC 1145
(Ch) at [20].
See eg In the estate of Winifred Bernadette Williams deceased [2022] EWHC 1334 (Ch); Boast v Ballardi
[2022] EWHC 1533 (Ch), [2022] WTLR 1203, at [28]; White v Philips [2017] EWHC 386 (Ch), [2017] WTLR
1559; Wilkinson v Hicken [2023] EWHC 1983 (Ch); Baker v Hewston [2023] EWHC 1145 (Ch); Leonard v
Leonard [2024] EWHC 321 (Ch) at [150], [151], [155] and [156]; Oliver v Oliver [2024] EWHC 2289 (Ch) at
[121] to [127]; Crew v Oakley [2024] EWHC 2847 (Ch); and Tucker v Felton-Page [2025] EWHC 530 (Ch) at
[24] and [28].
See eg Goss-Custard v Templeman [2020] EWHC 632 (Ch), [2020] WTLR 441; and Bond v Webster [2024]
EWHC 1972 (Ch) at [465].
Re Clitheroe [2021] EWHC 1102 (Ch), [2021] COPLR 380 at [43].
Re Byford (Deceased) [2019] EWHC 646 (Ch) at [138]. And possibly also in Gowing v Ward [2024] EWHC
347 (Ch) at [96], which quoted Key v Key [2010] EWHC 408 (Ch), [2010] 1 WLR 2020, at [549] to
enumerated three factors then stated that the testator must not be subject to a disorder of the mind.
[2013] EWCA Civ 94, [2013] WTLR 453.
[2010] EWHC 408 (Ch), [2010] 1 WLR 2020.
Key v Key [2010] EWHC 408 (Ch), [2010] 1 WLR 2020 at [95].
Costa v Germain [2019] EWHC 3324 (Ch) at [40].
[2014] EWHC 71 (Ch), [2015] COPLR 348.
[2023] EWHC 1145 (Ch) at [22].
See para 2.19 above.
[2023] EWHC 1145 (Ch) at [35].
Local Authority v JB [2021] UKSC 52, [2022] AC 1322 at [65].
Consultation Paper, para 2.59.
This point has also been considered in D Bedford and J Brook, “Reform of testamentary capacity: the
hidden pitfalls of replacing Banks v Goodfellow with the Mental Capacity Act 2005” (2024) 140 (Jan) Law
Quarterly Review 34.
Hugh Jones, solicitors’ firm, suggested that provision for supported will-making might help to mitigate a
slight gap between what the Banks test and the MCA test require. However, supported will-making,
something we consider in Chapter 4 below, can only help those who have capacity with the support
provided. If the threshold for capacity is higher, some people who would have capacity (with or without
support) under Banks will not under the MCA, and vice versa.
See para 2.107 and following below.
Consultation Paper, paras 2.57 and 2.58.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) s 4-006.
[2023] EWHC 1145 (Ch) at [29].
Consultation Paper, para 2.55.
Or part of the third limb, if it is thought to be a three-limbed test.
[2014] EWHC 71 (Ch), [2015] WTLR 493.
See Baker v Hewston [2023] EWHC 1145 (Ch) at [39] (emphasis in original).
[2014] EWCA Civ 280, [2014] WTLR 1097 at [40].
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) ss 4-005 and
4-007.
Above, s 4-007. On the presumption of capacity, see para 2.107 and following below.
[2014] EWHC 71 (Ch), [2015] COPLR 348.
[2018] EWHC 43 (Ch), [2018] COPLR 147. In addition, Re Jones (Deceased) [2023] EWHC 1457 (Ch) at
[47] quoted the statement from Simon v Byford [2014] EWCA Civ 280, [2014] WTLR 1097 that Banks does
not require an understanding of collateral consequences as opposed to immediate consequences.
[2014] EWHC 71 (Ch), [2015] COPLR 348.
[2023] EWHC 1145 (Ch) at [34]
Above, at [46]. See also [22], [30], [41], [49] and [50].
See Sharp v Adam [2006] EWCA Civ 449, [2006] WTLR 1059, at [79]; Leonard v Leonard [2024] EWHC
321 (Ch) at [156].
[2014] EWCA Civ 280, [2014] WTLR 1097.
STEP Paper: Commentary on the Issue of Testamentary Capacity and Reforms of Current Statutory Tests
(2024), http://www.step.org/system/files/media/files/2024-01/STEP-Testamentary-Capacity-Paper.pdf (last
visited 31 March 2025).
Including Denzil Lush, formerly the Senior Judge of the Court of Protection, who thought that section 3(4) is
subsumed under the first limb of Banks but that the position was not clear.
Mental Capacity Act 2005, s 3(4)(b).
Although Judge Tindal in Baker v Hewston [2023] EWHC 1145 (Ch) seems to suggest that it might not be
necessary for P to understand this under the MCA, if they actually made a will: “(failing to make a decision
would not arise if a will had been made)” at [47]. This suggestion seems contrary to the requirement under
section 3(4) of the MCA that the relevant information includes the reasonably foreseeable consequences of
“deciding one way or another, or failing to make a decision”.
Mental Capacity Act 2005, s 1(3). We discuss this in the context of supported will-making in Ch 4.
For cases in relation to LPAs, see eg In the matter of Collis (27 October 2010) QB (unreported); Public
Guardian v XR [2019] EWCOP 65; and Public Guardian v RI [2022] EWCOP 22, [2022] WTLR 133. For
cases in relation to advance decisions to refuse medical treatment, see eg A Local Authority v E [2012]
EWHC 1639 (COP), [2012] 2 FCR 523; and Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP
1317, [2014] COPLR 468. See also Re Clitheroe [2021] EWHC 1102 (Ch), [2021] COPLR 380.
Department for Education, Department of Health and Social Care, Ministry of Justice, and Welsh
Government, Changes to the MCA Code of Practice and implementation of the LPS: consultation document
(2022) para 1.7, https://www.gov.uk/government/consultations/changes-to-the-mca-code-of-practice-and-
implementation-of-the-lps/changes-to-the-mca-code-of-practice-and-implementation-of-the-lps-consultation-
document#section-1-proposed-updates-to-the-existing-chapters-in-the-code-1 (last visited 31 March 2025).
HM Government, Draft Mental Capacity Act 2005 Code of Practice: Including the Liberty Protection
Safeguards (2022) para 4.104.
And in this way is different than the MCA test, which requires that any incapacity be caused by an
impairment of, or a disturbance in the functioning of, the mind or brain: s 2(1).
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 4.016
also explains that “there must be a causal connection between the delusions or other disorder of the mind
and the dispositions made in the will and/or the decisions made by the testator in respect of the destination
of his property on death”.
See eg the explanation in Re ZX (Capacity to engage in sexual relations) [2024] EWCA Civ 1462 at [67].
Mental Capacity Act 2005: Code of Practice (2007) para 4.26.
See Re A (Capacity: Refusal of Contraception) [2010] EWHC 1549 (Fam), [2011] Fam 61; and K Keywood
“Safeguarding Reproductive Health? The Inherent Jurisdiction, Contraception and Mental Incapacity” [2011]
19(2) Medical Law Review 326.
Or fraud, although strictly a finding of fraud (including fraudulent calumny) is different than undue influence.
See Re Edwards (Deceased) [2007] EWHC 1119 (Ch), [2007] WTLR 1387 at [47].
Under the Banks test, a personality disorder can result in the person having a false belief amounting to a
“delusion”: M Frost, S Lawson and R Jacoby, Testamentary Capacity: Law, Practice and Medicine (2015)
paras 13.35 to 13.42. A personality disorder on its own does not necessarily mean that a person does not
have capacity under the Banks test, particularly where it is a lifelong disorder: see eg Wilkinson v Hicken
[2023] EWHC 1983 (Ch).
Sharp v Adam [2006] EWCA Civ 449, [2006] WTLR 1059, at [94].
See B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 80.
Leonard v Leonard [2024] EWHC 321 (Ch) at [156], [157] and [476].
D Bedford and J Brook, “Reform of testamentary capacity: the hidden pitfalls of replacing Banks v
Goodfellow with the Mental Capacity Act 2005” (2024) 140 (Jan) Law Quarterly Review 34, 60.
D Bedford and J Brook, “Reform of testamentary capacity: the hidden pitfalls of replacing Banks v
Goodfellow with the Mental Capacity Act 2005” (2024) 140 (Jan) Law Quarterly Review 34, 56, citing C
Kong and A R Keene, Overcoming Challenges in the Mental Capacity Act 2005 (2008) pp 115 to 116.
D Bedford and J Brook, “Reform of testamentary capacity: the hidden pitfalls of replacing Banks v
Goodfellow with the Mental Capacity Act 2005” (2024) 140 (Jan) Law Quarterly Review 34, 56, citing
Loughlin v Singh [2013] EWHC 1641 (QB) at [51]. However, see Biria v Biria [2024] EWHC 121 (Ch) at [104]
where, applying the Banks test, the court determined that the testator’s irrational belief about the conduct
and character of his son resulted in him being unable to appreciate the claims of that son on him.
G R Ashton, Baker LJ, and M Marin J (eds), Court of Protection Practice 2025 (2025) paras 1.211 and
1.231.
S v Birmingham Women’s and Children’s NHS Trust [2022] EWCOP 10, [2022] COPLR 345. See also D
Bedford and J Brook, “Reform of testamentary capacity: the hidden pitfalls of replacing Banks v Goodfellow
with the Mental Capacity Act 2005” (2024) 140 (Jan) Law Quarterly Review 34, 51.
The British Medical Association and The Law Society, A Ruck Keene (ed), Assessment of Mental Capacity:
A Practical Guide for Doctors and Lawyers (5th ed 2022) p 251. See also C Auckland, “Reforming
Testamentary Capacity: The Problem of Disorder” (2025) LSE Law, Society and Economy Working Papers
1 at 9 to 13, including the explanation of the approach taken in Northern Ireland to address this issue, under
the Mental Capacity Act (Northern Ireland) 2016, s 4(1)(c), as explained in Department of Health and Social
Services and Public Safety, Northern Ireland, Department of Justice, Draft Mental Capacity Bill (NI):
Consultation Document (May 2014) para 2.22.
The British Medical Association and The Law Society, A Ruck Keene (ed), Assessment of Mental Capacity:
A Practical Guide for Doctors and Lawyers (5th ed 2022) p 43. See also C Bielanska, Elderly Clients: A
Precent Manual (5th ed 2016) Ch 3; A Local Authority v JB [2020] EWCA Civ 735 at [36], aff’d by 2021]
UKSC 52, [2022] AC 1322; Department for Constitutional Affairs, Mental Capacity Act 2005 Code of
Practice (2007) para 1.6.
Local Authority v JB [2021] UKSC 52, [2022] AC 1322 at [65].
For example, if the MCA applied, this might have been in case in Kostic v Chaplin [2007] EWHC 2298 (Ch)
at [207], [208] and [212], and in Hinton v Leigh [2009] EWHC 2658 (Ch) at [170]. See C Auckland,
“Reforming Testamentary Capacity: The Problem of Disorder” (2025) LSE Law, Society and Economy
Working Papers 1 at 8 to 12. A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills
(19th ed 2021) at para 4-016 also explains the editors’ view that a delusion about a particular property, “for
example, that his former family home is blighted by some evil supernatural influence” would mean that the
testator is unable to understand the nature of his estate and so would lack capacity.
The draft Bill uses language that is commonly used in legislation to adopt the MCA test for capacity: see eg
Mental Health Act 2007, s 130B(7).
Or their delegate, under Mental Capacity Act 2005, s 42(3).
Mental Capacity Act 2005, s 1(2), which provides that “a person must be assumed to have capacity unless it
is established that he lacks capacity”.
Consultation Paper, para 2.86.
Consultation Paper, para 2.88.
Consultation Paper, Consultation Question 6.
Of those responding to Consultation Question 6, 71% agreed, 16% disagreed, and 13% expressed other
views.
Martyn Frost, Stephen Lawson and Professor Robin Jacoby, responding together, cited Feltham v Freer
Bouskell [2013] WTLR 1363 at [64] as imposing a duty on the person drafting the will, in accepting
instructions, to satisfy themselves that the testator has sufficient capacity.
Consultation Paper, para 2.87.
Sharp v Adam [2006] EWCA Civ 449, [2006] WTLR 1059, at [74]. As explained in Schrader v Schrader
[2013] EWHC 466 (Ch) at [79] in a case where there was a lot of evidence about capacity, “by the time it
has all been considered the presumption has faded away into the background”.
[2020] EWHC 632 (Ch) at [16].
D Bedford and J Brook, “Reform of testamentary capacity: the hidden pitfalls of replacing Banks v
Goodfellow with the Mental Capacity Act 2005” (2024) 140 (Jan) Law Quarterly Review 34, 46 and 47.
Baker v Hewston [2023] EWHC 1145 (Ch) at [46].
Feltham v Freer Bouskell [2013] EWHC 1952 (Ch), [2013] WTLR 1363 at [53] and [64], cited in M Frost, S
Lawson and R Jacoby, Testamentary Capacity: Law, Practice and Medicine (2015) para 2.61.
Department for Education, Department of Health and Social Care, Ministry of Justice, and Welsh
Government, Changes to the MCA Code of Practice and implementation of the LPS: consultation document
(2022) para 1.2, https://www.gov.uk/government/consultations/changes-to-the-mca-code-of-practice-and-
implementation-of-the-lps/changes-to-the-mca-code-of-practice-and-implementation-of-the-lps-consultation-
document#section-1-proposed-updates-to-the-existing-chapters-in-the-code-1 (last visited 31 March 2025).
HM Government, Draft Mental Capacity Act 2005 Code of Practice: Including the Liberty Protection
Safeguards (2022) para 2.6.
[2010] EWCA Civ 840, (2011) Ch 270, at [55].
Consultation Paper, Consultation Question 7.
Consultation Paper, para 2.92.
Of those responding to Consultation Question 7, 86% agreed, 4% disagreed, and 10% disagreed.
[2010] EWCA Civ 840, (2011) Ch 270.
Something we discuss more in Ch 9.
We do not think that a draft will which was created based on these instructions but which the testator did not
see and agree to could amount to a will that could be deemed to be formally valid under the dispensing
power. We do not think the testator could be said to have knowledge and approval of such a document, as
decisions would be required in relation to drafting the will from the instructions which the testator would
neither know about nor understand.
[2004] EWCA Civ 1554, [2005] WTLR 99.
Mental Capacity Act 2005, s 2(1).
Feltham v Freer Bouskell [2013] EWHC 1952 (Ch), [2013] WTLR 1363 at [53] and [64], cited in M Frost, S
Lawson and R Jacoby, Testamentary Capacity: Law, Practice and Medicine (2015) para 2.61.
Re Simpson (Deceased) (1977) 121 SJ 224 as cited in M Frost, S Lawson and R Jacoby, Testamentary
Capacity: Law, Practice and Medicine (2015) para 6.13.
Key v Key [2010] EWHC 408 (Ch), [2010] WLR 2020, at [7].
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 4-022.
Consultation Paper, para 2.98, citing Sharp v Adam [2006] EWCA Civ 449, [2006] WTLR 1059; Burns v
Burns [2016] EWCA Civ 37.
Consultation Paper, para 2.100.
Consultation Paper, para 2.99.
Consultation Paper, Consultation Question 8.
Consultation Paper, Consultation Question 9.
Consultation Paper, paras 2.103 to 2.106.
Consultation Paper, Consultation Question 10.
Consultation Paper, paras 2.108 to 2.110.
Consultation Paper, paras 2.113 to 2.115, citing Burgess v Hawes [2013] EWCA Civ 94, [2013] WTLR 453
and Ashkettle v Gwinnett [2013] EWHC 2125 (Ch), [2013] WTLR 1331.
Consultation Paper, paras 2.166 to 2.117.
Consultation Paper, paras 2.118 to 2.119.
Consultation Paper, para 2.120.
Consultation Paper, paras 2.122 to 2.131.
Consultation Paper, Consultation Question 11.
Consultation Paper, paras 2.132 to 2.135.
Of those responding to Consultation Question 8, 75% agreed, 16% disagreed, and 9% disagreed.
Discussed at para 2.174 below.
Of those responding to Consultation Question 9, 77% agreed, 10% disagreed, 13% expressed other views.
Consultant Psychiatrist (old age), responding to Consultation Question 8.
Consultant in Older Adults Psychiatry.
Of those responding to Consultation Question 11, 83% agreed, 9% disagreed, and 8% expressed other
views.
Consultation Paper, para 2.98.
See Wharton v Bancroft [2011] EWHC 3250 (Ch).
See eg Perrins v Holland [2009] EWHC 1945 (Ch), [2009] WTLR 1387 at [59].
C Holbech, “Has the golden rule lost its lustre?” [2012] 135 Trusts and Estates Law and Tax Journal 10.
Hughes v Pritchard [2022] EWCA Civ 386, [2022] Ch 339.
See eg Goss-Custard v Templeman [2020] EWHC 632 (Ch), [2020] WTLR 441; Todd v Parsons [2019]
EWHC 3366 (Ch), [2020] WTLR 305; St Clair v King [2022] EWHC 40 (Ch), [2022] WTLR 703; and Skillett v
Skillett [2022] EWHC 233 (Ch) at [32]. And it might be very difficult to comply where the circumstances are
urgent and the testator’s capacity fluctuates: see eg Crew v Oakley [2024] EWHC 2847 (Ch) at [205].
[2022] EWCA Civ 386, [2022] Ch 339. See Bond v Webster [2024] EWHC 1972 (Ch) at [498] and [499],
where the solicitor “despite her experience, did not have a good grasp as to how testamentary capacity is
tested”, and the solicitor did not in her attendance notes record her view as to the testator’s capacity.
[2022] EWCA Civ 386, [2022] Ch 339 at [89]. See also Bond v Webster [2024] EWHC 1972 (Ch) at [513] to
[515], in relation to the assessment of a doctor who “did not have any awareness of the Banks test for
testamentary capacity” and moreover had a personal relationship with the testator.
Department for Education, Department of Health and Social Care, Ministry of Justice, and Welsh
Government, Changes to the MCA Code of Practice and implementation of the LPS: consultation document
(2022), https://www.gov.uk/government/consultations/changes-to-the-mca-code-of-practice-and-
implementation-of-the-lps/changes-to-the-mca-code-of-practice-and-implementation-of-the-lps-consultation-
document#section-1-proposed-updates-to-the-existing-chapters-in-the-code-1 (last visited 31 March 2025);
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372.
Referred to by the Bar Council in its consultation response.
Deka Chambers, “Testamentary capacity and solicitor negligence” (16 February 2013) Lexology,
https://www.lexology.com/library/detail.aspx?g=62303ae0-050c-40ce-999d-8f82dd722a14 (last visited 31
March 2025).
Lord Templeman’s reputation and “his evident intellectual resources, even at that age”, 88, when he drafted
his will, meant that the court was not surprised that the solicitor did not comply with the rule when drafting
his will, in Goss-Custard v Templeman [2020] EWHC 632 (Ch), [2020] WTLR 441 at [115].
STEP, STEP Code for Will Preparation in England and Wales (2016).
The Law Society, Working with clients who may lack mental capacity (13 May 2022); and the protocol
contained in the Wills and Inheritance Quality Scheme for parties regulated by the Solicitors Regulation
Authority.
Solicitors Regulation Authority, Guidance: Drafting and preparation of wills (25 November 2019).
Institute of Professional Willwriters, Code of Practice (May 2019), https://www.ipw.org.uk/code-of-
practice.aspx (last visited 31 March 2025).
The Society of Will Writers and Estate Planning Practitioners, Code of Practice (January 2024),
https://www.willwriters.com/about-us/code-of-practice/ (last visited 31 March 2025).
A supporter who is acting in a professional capacity or being paid will also be subject to the Code: see Ch 3.
Consultation Paper, paras 2.103 to 2.106.
Under the Department for Constitutional Affairs.
See para 4.97 below.
G R Ashton, Baker LJ, M Marin J (eds), Court of Protection Practice 2025 (2025) para 1.826. We have
recently been told by the Official Solicitor that they have decreased over the past few years, to
approximately 200 per year.
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, Recommendation 40.
Mental Capacity Act 2005, Sch 2 para 2. Excluding the limitation that we discuss at para 3.64 and following
below.
Mental Capacity Act 2005, s 18(2).
A gift is adeemed if it fails by ademption: see the glossary for the meaning of “ademption”. We discuss
ademption in detail in Ch 12.
G R Ashton, Baker LJ, M Marin J (eds), Court of Protection Practice 2025 (2025) para 1.826.
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, para 14.3.
Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591 at [45].
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, Recommendation 40.
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 62, 65.
UN Committee on the Rights of Persons with Disabilities, General Comment No 1 Article 12: Equal
Recognition before the Law (2014) para 26.
Consultation Paper, para 3.33.
Consultation Paper, para 3.21.
Consultation Paper, para 3.22.
See Consultation Paper, para 3.23 and Re P [2009] EWHC 163 (Ch), [2010] Ch 33 and Re D [2010] EWHC
2159 (Ch), [2012] Ch 57 as examples.
P Hewitt, S Richards and N Stourton, “The Court of Protection, charities and the evolution of best interests”
[2012] Elder Law Journal 264, discussed at Consultation Paper, para 3.24.
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, discussed at Consultation Paper, para 3.27. Professor Harding notes
NT v FS [2013] EWHC 684 (COP), [2014] WTLR 867 as an example of this approach, a case in which the
Court of Protection determined the terms of the statutory will in reliance on submissions from the parties as
to the percentage of the testator’s net estate which each potential beneficiary should receive.
Consultation Paper, para 3.27.
Consultation Paper, para 3.34.
Consultation Paper, para 3.20.
See A Ruck Keene and C Auckland, “More presumptions please? Wishes, feelings and best interests
decision-making” [2015] Elder Law Journal 293, discussed at Consultation Paper, para 3.35.
Consultation Paper, para 3.35.
Consultation Paper, para 3.36.
Consultation Paper, Consultation Question 12.
Consultation Paper, para 3.37.
Consultation Paper, Consultation Question 12.
Consultation Paper, para 3.38.
See Consultation Paper, para 8.24 for a list of instances where the law treats 16- and 17-year-olds as
adults. However, we have reconsidered this view: see para 10.60 below.
Of those responding to Consultation Question 12, 80% agreed, 7% disagreed, and 13% expressed other
views.
Formerly the Senior Judge of the Court of Protection.
G R Ashton, Lord Justice Baker and Marc Marin, Mental Capacity: Law and Practice (4th ed 2018) para
2.121.
A R Keene and M Friedman, “Best interests, wishes and feelings and the Court of Protection 2015 - 2020”
[2020] Winter Journal of Elder Law and Capacity 31, 46.
[2019] EWCA Civ 1215, [2019] 1 WLR 5597 at [76].
HM Government, Draft Mental Capacity Act 2005 Code of Practice Including the Liberty Protection
Safeguards (2022) para 5.64.
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, paras 14.12 to 14.16.
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, Recommendation 40.
Under Court of Protection Rules 2017 (SI 2017 No 1035), r 19.2.
D v JC [2012] COPLR 540, [2012] WTLR 1211 at [51] by Senior Judge Lush.
Mental Incapacity (1995) Law Com No 231, para 3.29.
Re C [1991] 3 All ER 366, [1992] 1 FLR 51 at 55 by Hoffmann J (as he then was). See also Mental
Incapacity (1995) Law Com No 231, para 3.30.
Re M [2009] EWHC 2525 (Fam), [2011] 1 WLR 344 at [29] by Munby J (as he then was).
Consultation Paper, para 3.36.
UN Committee on the Rights of Persons with Disabilities, General Comment No 1 Article 12: Equal
Recognition before the Law (2014) para 27.
Consultation Paper, para 3.22.
Re P [2009] EWHC 163 (Ch), [2010] Ch 33. See also Consultation Paper, para 3.23.
[2010] EWHC 2159 (Ch), [2012] Ch 57.
P Hewitt, S Richards and N Stourton, “The Court of Protection, charities and the evolution of best interests”
(2012) 2 Elder Law Journal 264, cited at Consultation Paper, para 3.24.
[2012] COPLR 540, [2012] WTLR 1211.
Final Government Response to the Law Commission’s review of Deprivation of Liberty Safeguards and
Mental Capacity (March 2018) pp 19 to 20.
Lord O’Shaughnessy, Annex A of letter to Lords regarding points raised during the second reading of the
Mental Capacity (Amendment) bill (24 July 2018) pp 11 to 12.
Department for Constitutional Affairs, Mental Capacity Act Code of Practice (2007) p 2.
Pretty v UK (2002) 35 EHRR 1 (App No 2346/02).
Consultation Paper, para 3.37.
Eg D v JC [2012] COPLR 540, [2012] WTLR 1211.
See Recommendation 23. We also recommend that persons under the age of 16 should be able to be
authorised by the court to make a will in particular terms if the court judges them as competent to do so: see
Recommendation 24.
[1986] AC 112, [1985] 3 WLR 830.
For example, Re CJF [2019] EWCOP 1, [2018] COPLR 262.
Children Act 1989, ss 3 and 8. See also N Lowe and G Douglas, Bromley’s Family Law (10th ed 2007) p
401. Several cases have considered the sale of a child’s property: Re AC (A Child) [2020] EWFC 90, [2021]
WLR 12; Re Shanavazi [2021] EWHC 1832 (Ch), [2021] WTLR 1037; Re B (A Child) [2022] EWFC 7, [2022]
4 WLR 34.
Determined in accordance with the paramountcy principle and the welfare checklist: Children Act 1989, s 1.
Specifically, such dispositions will not be effective in relation to the testator’s capacity and the due execution
of the will. See Heywood and Massey: Court of Protection Practice (2022) para 14-020; and Re P [2009]
EWHC 163 (Ch), [2010] Ch 33, at [33].
Morris, The Conflict of Laws (10th ed 2021) para 18-017.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 2-035.
Dicey, Morris and Collins on The Conflict of Laws (16th ed 2022) paras 28R-02 and 28-026. See also J
McGhee and S Elliott, Theobald on Wills (19th ed 2021) paras 2-034 and 2-060; Morris, The Conflict of
Laws (10th ed 2021) para 18-016. See also Re P (Statutory Will) [2009] EWHC 163 (Ch), [2010] Ch 33.
One consultee, STEP, argued that another jurisdiction, particularly one to which the EU Succession
Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council (July 2012))
applies, might already recognise the will as valid, because it could view the limitation in paragraph 4(4) as
part of England and Wales’s private international law, not its domestic law, and a matter of renvoi (“sending
back”, a concept in private international law in which in the applicable jurisdiction’s law includes its private
international law, and if that law would refer to another jurisdiction’s laws) which would not be accepted if a
valid choice of law is made. Paul Saunders, independent trust consultant, made a similar argument.
However, both considered that this could cause confusion and suggested the Schedule be amended.
Regulation (EU) No 650/2012 of the European Parliament and of the Council (July 2012), which applies to
testamentary capacity: Article 26.
Article 22. Without such a declaration, the law of the person’s habitual residence at the time of their death
will apply: Article 21.
Or in relation to any matter other than immovable property: see Re P (Statutory Will) [2009] EWHC 163
(Ch), [2010] Ch 33, at [34].
Hague Conference on Private International Law, 35 Convention on the International Protection of Adults (13
January 2000).
The United Kingdom has so far ratified the Convention in relation to Scotland only, and so is not a
contracting state for its purposes: G R Ashton, Baker LJ, M Marin J (eds), Court of Protection Practice 2025
(2025) para 1.1327. This means that contracting states are not obliged to recognise a protective measure
from England and Wales. But such a foreign jurisdiction might recognise such a protective measure anyway.
England and Wales itself is an example. Although it has not ratified the Convention, it has given effect to it in
its domestic law in Sch 3 to the Mental Capacity Act 2005. Under Sch 3, it recognises and enforces
protective measures from other jurisdictions, including from other non-contracting states. On that basis,
Court of Protection Practice 2025 describes England and Wales as a “proto-Hague 35 state”: paras 1.1342
and 1.1367.
Which can be based on the person’ habitual residence, the location of the property, or, if the matter is
urgent, the person’s presence, among other things: Articles 5 to 10.
Article 1. Although “succession law” is excluded under Article 4(1)(d) of the Convention.
R Frimston, “Cross-Border Incapacity: Hague 35, the Only Life Raft Available in Choppy Waters” [2015] 2
Elder Law Journal 166, 169 to 170. See also G R Ashton, Baker LJ, and M Marin J (eds), Court of
Protection Practice 2025 (2025) para 1.1374.
Barring any forced heirship rules.
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, Recommendation 40; Draft Mental
Capacity (Amendment) Bill, cl 8.
Court of Protection Rules 2017 (SI 2017 No 1035), r 1.2.
Court of Protection Rules 2017 (SI 2017 No 1035), r 17.4(1). See also Re D [2016] EWCOP 35 at [39].
G R Ashton, Mr Justice Lord Justice Baker and M Martin, Mental Capacity: Law and Practice (4th ed 2018)
para 9.72.
Court of Protetion Rules 2017 (SI 2017 No 1035), r 9.6.
Court of Protection Rules 2017 (SI 2017 No 1035), r 9.12(2) and (5).
Court of Protection: Practice Direction 9E, para 9. See G R Ashton OBE, Baker LJ, M Marin J (eds), Court of
Protection Practice 2025 (2025) paras 1.845 to 18.851.
Court of Protection Rules 2017 (SI 2017 No 1035), r 19.2.
Court of Protection Rules 2017 (SI 2017 No 1035), r 19.5.
Consultation Paper, para 3.39.
Consultation Paper, Consultation Question 13.
Consultation Paper, para 3.40.
Of those responding to Consultation Question 13, 51% were in favour of reform, 19% opposed to reform,
and 30% made other comments.
19% of those responding to Consultation Question 13.
Court of Protection Rules 2017 (SI 2017 No 1035), rr 1.3(3)(l) and 3.6(4).
See Court of Protection Rules 2017 (SI 2017 No 1035), r 1.1.
The Hon Mr Justice Hayden, Guidance for the Court of Protection: ’Closed Hearings’ and ‘Closed Material’
(February 2023) para 6.
See eg in Mazhar v Birmingham Community Healthcare Foundation NHS Trust [2020] EWCA Civ 1377,
[2021] 1 WLR 1207 at [71].
Court of Protection Rules 2017 (SI 2017 No 1035).
A deputy is 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 their own behalf; deputies are often family
members but can also be professionals.
G R Ashton, Mr Justice Baker and M Martin, Mental Capacity: Law and Practice (4th ed 2018) para 5.40.
See also Re D [2016] EWCOP 35 at [39].
Court of Protection Rules 2017 (SI 2017 No 1035), r 17.4(1).
G R Ashton, Mr Justice Baker and District Judge M Martin, Mental Capacity: Law and Practice (4th ed 2018)
para 9.72.
Court of Protection Rules 2017 (SI 2017 No 1035), r 17.4(1).
[2016] EWCOP 35, [2016] COPLR 432, at [39].
See eg Re P (Statutory Will) [2024] EWCOP 12.
Court of Protection Rules 2017 (SI 2017 No 1035), r 19.2.
Court of Protection Rules 2017 (SI 2017 No 1035), r 19.5.
See eg Re P (Statutory Will) [2024] EWCOP 9, where the circumstances of the case, particularly the deputy
applicant’s fundamental misunderstanding of the purpose of the requirement to notify beneficiaries, justified
a departure from the general rule.
Court of Protection Rules 2017 (SI 2017 No 1035), r 19.11.
With exceptions for r 19.11 and compliance with Court of Protection: Practice Direction 24B (which provides
for the finalisation of the Court’s involvement in the person’s affairs).
Victorian Law Reform Commission, Succession Laws Report (2013) p 24. See Consultation Paper, para
3.40.
We recommend the creation of a dispensing power in Recommendation 12.
Mental Capacity Act 2005, Sch 2 para 3(2).
In Re Hughes (Deceased), The Times 8 January 1999, in a case under the Mental Health Act 1983, the
testator died after the statutory will had been executed but before the Court of Protection had sealed it. In
this case, the court determined that sealing was a ministerial function to ensure that the will as executed
was the will authorised to be made.
We note that in an interpretation case under s 21 of the Administration of Justice Act 1982, where the will
being interpreted was a will that was amended by a statutory codicil made by the Court of Protection, the
court considered, as the testator’s intentions, the intention as expressed by the Court of Protection and the
reasons underlying the decision as being in the testator’s bests interests: Re Bathurst (Deceased) [2018]
EWHC 21 (Ch), 2017] WTLR 1207. We agree that this is the correct approach where a statutory will is being
interpreted (or rectified). It is necessary to attribute an intention to a statutory will for the law governing
interpretation and rectification to apply. However, we do not think this rationale applies to a dispensing
power.
Under Mental Capacity Act 2005, s 1(3).
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, Recommendation 42.
UN Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal
Recognition before the Law (2014) para 16.
UN Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal
Recognition before the Law (2014) para 28.
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? (September 2014) p 12.
See eg United Nations Committee on the Rights of Persons with Disabilities, Concluding observations on
the initial report of the United Kingdom of Great Britain and Northern Ireland (October 2017).
As we did in the Consultation Paper, para 4.7.
Consultation Paper, para 4.9.
As well as under s 3(2).
See eg R Harding, E Ta§cioglu and M Furgalska, Supported Will-Making: A Socio-Legal Study of
Experiences, Values, and Potential in Supporting Testamentary Capacity (2019) p 59.
Department for Constitutional Affairs, Mental Capacity Act 2005 Code of Practice (2007) para 3.2.
Consultation Paper, paras 4.12 to 4.17.
Consultation Paper, paras 4.18 to 4.24.
Consultation Paper, para 4.25.
Consultation Paper, para 4.28, citing Mental Capacity and Deprivation of Liberty (2017) Law Com No 372,
para 14.43 and following, and Recommendation 42.
Consultation Paper, paras 4.31 to 4.46.
Consultation Paper, paras 4.47 to 4.48.
Consultation Paper, paras 4.49 to 4.51.
Consultation Paper, paras 4.52 to 4.55.
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, Recommendation 42.
Consultation Paper, paras 4.46 to 4.59.
Consultation Paper, Consultation Question 14.
Of those responding to Consultation Question 14, 42% agreed it would be practical or desirable, 32%
disagreed, and 26% expressed other views.
Former Master and Senior Judge of the Court of Protection.
Barrister, also referring to a blog post by Dr Series: L Series, “Where there’s a will, there’s a way” (October
2017) The Small Places, https://thesmallplaces.wordpress.com/2017/10/25/where-theres-a-will-theres-a-
way/ (last visited 31 March 2025).
Including, according to the Law Society, notaries.
Also referring to a blog post by Dr Series: L Series, “Where there’s a will, there’s a way” (October 2017) The
Small Places, https://thesmallplaces.wordpress.com/2017/10/25/where-theres-a-will-theres-a-way/ (last
visited 31 March 2025).
Also referring to the above blog post by Dr Series.
Anthony Collins Solicitors LLP and Wedlake Bell LLP.
Also referring to a blog post by Dr Series: L Series, “Where there’s a will, there’s a way” (October 2017) The
Small Places, https://thesmallplaces.wordpress.com/2017/10/25/where-theres-a-will-theres-a-way/ (last
visited 31 March 2025).
Former Justice of the UK Supreme Court.
R Harding and E Ta§cioglu, “Supported Decision-Making from Theory to Practice: Implementing the Right to
Enjoy Legal Capacity” (2018) 8 Societies 25, 26.
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372.
The liberty protection safeguards are not yet in force and there is no date for their implementation: Mithran
Samuel, “UPDATED: October 2023 date for Liberty Protection Safeguards ‘incorrect’” (28 October 2022)
Community Care, https://www.communitycare.co.uk/2022/10/28/liberty-protection-safeguards-due-for-
implementation-in-october-
2023/#:~:text=Reports%20that%20the%20Liberty%20Protection,by%20chief%20executive%20Colum%20C
onway (last visited 31 March 2025).
Ministry of Justice, Report on the implementation of Law Commission recommendations (July 2023) para 6.
Department for Health and Social Care, Final Government Response to the Law Commission’s review of
Deprivation of Liberty Safeguards and Mental Capacity (2018) Recommendation 42.
Department for Education, Department of Health and Social Care, Ministry of Justice, Welsh Government,
Changes to the MCA Code of Practice and implementation of the LPS: consultation document (2022)
Consultation Guidance, paras 2.2 and 2.3.
R Harding, E Ta§cioglu and M Furgalska, Supported Will-Making: A Socio-Legal Study of Experiences,
Values, and Potential in Supporting Testamentary Capacity (2019), https://legalcapacity.org.uk/wp-
content/uploads/2019/09/SupportedWillMaking_FinalReport_2019_web.pdf (last visited 31 March 2025).
Above, pp 45 and 62, and 71 and 72.
Mental Capacity Act 2005, s 1(3).
See para 2.185 above.
L Series, “Where there’s a will, there’s a way” (October 2017) The Small Places,
https://thesmallplaces.wordpress.com/2017/10/25/where-theres-a-will-theres-a-way/ (last visited 31 March
2025).
Also referring to the above blog post by Dr Series.
R Harding, E Ta§cioglu and M Furgalska, Supported Will-Making: A Socio-Legal Study of Experiences,
Values, and Potential in Supporting Testamentary Capacity (2019) p 32.
UN Committee on the Rights of Persons with Disabilities, General Comment No 1: Article 12: Equal
Recognition before the Law (2014) para 29.
Where an assessment is taking place prospectively. See eg Mental Capacity Act 2005, ss 1(1), 2(1) and
3(1). In a retrospective analysis, where the testator has died, this duty cannot apply: see para 2.80 and
following above.
Such guidance could be made, once the test of capacity in the Mental Capacity Act 2005 applies to will-
making, under existing s 42(1)(a), which requires a code of practice to be made for “persons assessing
whether a person has capacity”.
We also think that the Code of Practice should make clear that because supporting a testator to have
capacity and assessing the testator’s capacity are different functions, they should not be performed by the
same person.
R Harding, E Ta§cioglu and M Furgalska, Supported Will-Making: A Socio-Legal Study of Experiences,
Values, and Potential in Supporting Testamentary Capacity (2019). See para 4.76 above.
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, Recommendation 42.
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, Appendix A, draft Mental Capacity
(Amendment) Bill, cl 12.
This is achieved in relation to deputies by statute deeming a deputy the person’s agent, with agency already
been an established category of fiduciary relationship: Mental Capacity Act 2005, s 19(6).
Al Nehayan v Kent [2018] EWHC 333 (Comm), [2018] 1 CLC 216 at [157].
Equality Act 2010, ss 20 to 22 and 29.
Mental Capacity and Deprivation of Liberty (2017) Law Com No 372, Appendix A.
Consultation Paper, paras 5.13 to 5.32.
Consultation Paper, paras 5.33 to 5.35.
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.
Sherrington v Sherrington [2005] EWCA Civ 326, [2005] WTLR 587 at [62].
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; and Re Webb [1964] 1 WLR 509. A formal or regular attestation
clause records compliance with the formality requirements in the execution of the document.
A Learmonth, J Clarke, K Shuman, C Ford, and T Fletcher, Theobald on Wills (19th ed 2021) paras 3-033 to
3-035. We provided an example of an attestation clause at para 5.11 of the Consultation Paper.
Vinnicombe v Butler (1864) 3 Sw & Tr 580 at 582; and Harris v Knight (1890) 15 PD 170 at 183 to 184.
See further Consultation Paper, paras 5.37 to 5.40.
Wills Act 1963, s 1. We discuss the Wills Act 1963 in more detail in Ch 3.
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)). Provision is also made under ss 27
and 28 of the Administration of Justice Act 1982 for international wills (made under the annex to the
Washington Convention on International Wills, reproduced in Sch 2 to the 1982 Act) to be valid, although the
provisions are not yet in force.
Wills Act 1837, s 11 and Wills (Soldiers and Sailors) Act 1918, s 2.
See Consultation Paper, paras 5.8 and 5.9.
Where a person dies without a valid will, their estate will generally pass according to the intestacy rules.
Under the intestacy rules, the estate would pass to specified relatives, depending on the deceased person’s
situation when they died (for instance, whether they had children or were married or in a civil partnership)
and on the estate’s value. The estate may also be affected in other ways, whether a will or the intestacy
rules apply, such as by a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Consultation Paper, para 5.46.
Consultation Paper, Consultation Question 15.
Consultation Paper, Consultation Question 16.
Consultation Paper, para 5.90. Practitioners were responding to a survey conducted for us in 2015 by the
Association of Contentious Trust and Probate Specialists.
Consultation Paper, Consultation Question 27. We asked this question in the context of our discussion of
the dispensing power. We consider the dispensing power in Ch 6 below.
Of those responding to Consultation Question 15, 9%.
Dr Brook contrasted the requirement for making a deed, where only one witness is needed.
Of those responding to Consultation Question 15, 76%. CILEx noted the results of a survey it had carried
out, in which it had asked its members for views on whether each formality requirement has a deterrent
effect. Overall, its members either disagreed or strongly disagreed that the separate requirements
dissuaded people from making wills (with the proportion ranging from 71% to 83% across the different
formalities).
For instance, the Society of Will Writers and Estate Planning Practitioners wrote that they “have not seen
any evidence that the formalities dissuade people from making wills”.
Liverpool Law Society’s Non Contentious Business Committee.
Anthony Collins Solicitors LLP.
Of those responding to Consultation Question 15, 16%.
Former barrister and one of the editors of Williams on Wills.
In response to Consultation Question 16.
Anthony Collins Solicitors LLP.
Toby Harris, non-legal professional.
Martyn Frost, solicitor, Stephen Lawson, solicitor, and Professor Robin Jacoby, responding together.
The Society of Will Writers and Estate Planning Practitioners.
Points made by University of Law Birmingham and Remember a Charity respectively.
Andrew Brooke, retired solicitor.
Lord Walker of Gestingthorpe, former Justice of the UK Supreme Court.
Anthony Collins Solicitors LLP.
In this context, Amanda Steele, solicitor, wrote that people may lack understanding of “the advantages to a
professionally drawn up will to safeguard their assets, minimise tax liability, get rid of uncertainty in the
disposition of their asset, advise them on the often numerous issues they have not considered, help them to
minimise family fall outs”.
Churches’ Legislation Advisory Service.
Hugh James, solicitors’ firm, and Bircham Dyson Bell LLP Private Wealth Department.
We discuss the rule that marriage and civil partnership revokes a will, and recommend its abolition, in Ch
13.
This was raised, for example, by the Royal College of Psychiatrists, who wrote that “while we understand
the reasons for this reluctance, we consider that better guidance on the assessment of capacity and
improved training could help to reduce this reluctance in some cases”.
Hugh James, solicitors’ firm, who noted that many of these individuals might be happy as a matter of
principle with the existence of the formality requirements, and that the difficulties they experienced are
“practical and could be easily overcome”.
We consider support in the will-making process in Ch 4.
Maurice Turnor Gardner LLP, solicitors’ firm.
Devon and Somerset Law Society.
The Bar Council suggested that the presumption of due execution, which it said was a “good and useful
presumption”, often “masks invalidity”. Other consultees, such as Anthony Collins Solicitors LLP, noted that
some wills can be “saved” from concerns about compliance with formalities by the production of affidavits of
due execution.
Former Justice of the UK Supreme Court.
Steve Jenkins, non-legal professional.
For instance, Professor D G Barnsley suggested that to obtain meaningful answers, a public survey would
need to be carried out, asking people “if they have made a will and then, if a negative reply is given, asking
a supplementary question in the form of [Consultation Question] 15”.
For example, the Society of Will Writers and Estate Planning Practitioners. Other consultees agreed,
including Hugh James, who wrote that the number of people making wills may increase “if people were more
widely educated on the importance of having a will and the consequences of not having a will (one
suggestion was through leaflets in doctors’ surgeries, schools etc)”.
See para 5.2 above.
One recent example of where a will was found to be a forgery (on the basis of handwriting analysis of the
testator’s purported signature) is Rainey v Weller [2021] EWHC 2206 (Ch), [2022] 1 P&CR D64.
For instance, the Sole Practitioners Group wrote that “even if they did deter people from making wills the
significance of the benefits overcomes any deterrent effect”.
Burgess v Penny [2019] EWHC 1571 (Ch), [2019] All ER (D) 167 (Jun) at [119]. Another recent example of
a will failing for non-compliance with the formality requirements (specifically, the witnessing requirement)
was discussed in the following articles: https://todayswillsandprobate.co.uk/costly-will-writing-error-denies-
charities-1m-bequest/; and https://www.thetimes.com/uk/society/article/charities-sue-signature-error-will-
probate-3d2s36hx9?msockid=0d44dc43433c6d561113c9f642346caf (last visited 31 March 2025).
We recommend that the requirement that each witness attests should also apply where they acknowledge
their signatures: see para 5.55 and following below.
Wills Act 1837, s 9(2) is not replicated in Sch 2 to our draft Bill. That subsection provided for video-
witnessing of wills during the COVID-19 pandemic. We discuss this provision in more detail in Ch 8.
Where the witness acknowledges their signature, under s 9(1)(d)(ii) of the Wills Act 1837, there is no
attestation requirement; the attestation requirement applies only under s 9(1)(d)(i).
Consultation Paper, para 5.62. See also para 5.64, where we discussed the attestation requirement in the
different context of executing deeds under the Law of Property (Miscellaneous Provisions) Act 1989.
Sherrington v Sherrington [2005] EWCA Civ 326, [2005] WTLR 587 at [37].
Consultation Paper, Consultation Question 23.
Consultation Paper, Consultation Question 24.
Of those responding to Consultation Question 23, 55% agreed, 38% disagreed, and 6% expressed other
views.
Former barrister and one of the editors of Williams on Wills.
Under s 9(1)(d)(ii) of the Wills Act 1837.
Sherrington v Sherrington [2005] EWCA Civ 326, [2005] WTLR 587.
[1950] 1 All ER 1009. This case, a judgment of the Probate, Divorce and Admiralty Division of the High
Court, concerned whether an attestation clause was sufficient such that an affidavit of due execution was
not required for proof of the will. The attestation clause stated that the witnesses “attested” but omitted to
say that they “subscribed their names as witnesses” (subscription being the requirement at the time, later
replaced by a requirement for “signing”). The clause was found to be good on the basis that the requirement
in the Wills Act 1837 to “attest” included in it the requirement to subscribe.
Academic, with whom Charles Neal, solicitor, agreed.
Of those responding to Consultation Question 24, 74% were in favour, 18% expressed other views, and 8%
were opposed.
[2005] EWCA Civ 326, [2005] WTLR 587.
Above, at [37], citing Hudson v Parker (1844) 1 Rob Ecc 14, 26.
Above, at [37], citing Bryan v White (1850) 2 Rob Ecc 315, 317.
Above, at [37], citing Griffith v Griffiths (1871) LR 2 P&D 300, 303.
Above, at [39], referring to In the Estate of Benjamin, deceased (1934) 150 LT 417.
Re Sangha (Deceased) [2023] EWCA Civ 660, [2023] 4 WLR 60 at [92] by Nugee LJ. The High Court also
recently described “attest” as “you attest to some perceptible event, in the sense that you say you have
perceived (usually, but not always, seen) its occurrence”, and “attesting” as “bearing witness”, in James v
Scudamore [2023] EWHC 996 (Ch) at [103] and [104] respectively by HHJ Paul Matthews. For the meaning
of “obiter”, see the glossary.
B Sloan, “Testing times for attestation: Payne v Payne” [2019] 2 Conveyancer and Property Lawyer 182.
[2018] EWCA Civ 985, [2018] 1 WLR 3761.
B Sloan, “Testing times for attestation: Payne v Payne” [2019] 2 Conveyancer and Property Lawyer 182,
194.
See Re Selby-Bigge [1950] 1 All ER 1009 (about whether an attestation clause was sufficient under the
Probate Non-Contentious Rules such that an affidavit of due execution was not required for proof of the will
in common form); and Burdett v Spilsbury (1843) 10 Cl & Fin 340; 8 ER 772 (in order for the witnesses to
have attested for the exercise of a power of appointment, did they need to expressly attest on the face of the
will to the fact that the testatrix signed, sealed and published her will before them, and whether “witness” is
synonymous with “attesting witness”).
See para 5.64 above.
See B Sloan, “Testing times for attestation: Payne v Payne” [2019] 2 Conveyancer and Property Lawyer
182, 193.
If no one is available, the court can accept affidavit evidence that the signature is the handwriting of the
testator or other evidence that might raise the presumption of due execution: Non-Contentious Probate
Rules 1987 (SI 1987 No 2024), r 12.
A will may be proved either in common or solemn form. Most wills are proved in common form, under the
Non-Contentious Probate Rules 1987 (SI 1987 No 2024), where their validity is not challenged or after a
hearing on motion or summons. A will is proved in solemn form where a court pronounces that it is valid
after an action involving persons interested under the will and on intestacy: A Learmonth, C Ford, J Evans-
Gordon, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (22nd ed 2023) para
11-02.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 3-035.
This provision was included in the Wills Act 1837 because, prior to it, the testator was required to “do some
act clearly declaring the instrument to be his will, though no particular form of words was necessary”: L
Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute 7 Will IV & 1 Vict c 26 for the
Amendment of the Laws with Respect to Wills (1838) p 45.
See Halsbury’s Statutes (2017 reissue) vol 50, Wills and Estates.
For example, see Law of Property Act 1989, s 1(3); Law of Property Act 1925, ss 74, 75, and 159;
Companies Act 2006, s 44(2)(b); Civil Partnership Act 2004, s 8(3)(b); Human Tissue Act 2004, ss 2(6) and
3(5); Human Fertilisation and Embryology Act 1990, para 1 of Sch 3; and Representation of the People Act
1983, para 39(5)(b) of Sch 1.
We note that, if our draft Bill for a new Wills Act were to be enacted, this report and other Law Commission
publications may provide assistance to a court in establishing the purpose of the legislation on this point (as
well as in respect of other issues in the draft Bill): see R (on the application of O (a child)) v Secretary of
State for the Home Department [2022] UKSC 3, [2023] AC 255 at [30].
Consultation Paper, para 5.41 and following.
Wills Act 1837, s 11. Technically, s 11 preserves the common law ability of soldiers in military service or
mariners and seamen at sea to dispose by will of personal property without any formalities whatsoever, and
to do so when they were, under the common law, old enough to make a will (aged 14 for boys and 12 for
girls): A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 3-
054. The Wills (Soldiers and Sailors) Act 1918 widens the scope of who is covered by s 11 and therefore
can make privileged wills, along with, among other things, extending the privilege to cover disposals of real
property.
“Soldier” has been determined by the courts to include not only those who are fighting “but also those who
serve in the Forces, doctors, nurses, chaplains, WRNS, ATS and so forth”: Re Wingham [1949] P 187, 196,
as cited in R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed
2016) para 4-31. See also Wills (Soldiers and Sailors) Act 1918, s 5(2).
Consultation Paper, para 5.76.
The Ministry of Defence told us in initial discussions that around 64% of service personnel have made a will
via the MOD Form 106 (and that they are advised to seek professional advice when doing so): see the
Consultation Paper, para 5.77.
Consultation Paper, Consultation Question 26.
For example, at para 5.79, we explained that it would be difficult to amend the definition of “actual military
service” so that only service personnel in “imminent danger” would be caught; there would be a risk that any
such change would draw the privilege too narrowly.
Of those responding to Consultation Question 26, 74%.
Anthony Collins Solicitors LLP wrote that they agree “that providing civilians who meet a clear statutory
definition (which is already in force and therefore readily understandable and something those civilians
subject to such discipline would be aware of) appears a measured, justifiable extension to the privileged
wills position and afford a greater parity at law in the cases it is relevant to”.
Of those responding to Consultation Question 26, 15% and 11% respectively.
We note that some consultees (such as the Chancery Bar Association) who argued that privileged wills
should be abolished also wrote that if the privilege were to be retained, it should be limited in the way we
provisionally proposed in Consultation Question 26.
STEP, and Paul Saunders, independent trust consultant.
Chancery Bar Association. STEP, and Paul Saunders, along similar lines, wrote that members of the Armed
Forces “are generally therefore encouraged, and given the appropriate opportunity, to make a will before
they are placed in a position of ‘imminent danger’”.
Thomson Snell & Passmore LLP, solicitors’ firm.
We discuss our recommendation to introduce a dispensing power in Ch 6 below.
Suggested by one member of the public.
Andrew Brooke, retired solicitor.
Sheila Campbell, retired solicitor. Andrew Brooke, retired solicitor, gave the interesting anecdotal example of
his grandfather: “He made a will on board ship but did not include an attestation clause. The
witnesses, being seamen, disappeared on other voyages and could not be found at the time of his death.
The will was nonetheless proved as he was found to have been at sea on the date the will was made so that
the circumstances of its execution were not important”.
Dr Richard Hedlund, academic, made the similar point that it is much easier in the modern day to make a
valid will on a ship, and that although he did not want “to diminish the dangers of the sea, which are very
real. I can no longer see a solid justification for the mariner’s privilege”.
See Armed Forces Act 2006, s 370.
Non-Contentious Probate Rules 1987 (No 1987 No 2024), rr 17 and 18.
Under cl 11(4), the testator must still meet the knowledge and approval requirement in cl 4(1)(a).
The reference to being “at sea” in s 11 of the Wills Act 1837 is not carried forwards into the draft Bill, so that
those in the Navy do not benefit from the privilege in broader circumstances than those in the Army.
“Service discipline” as defined in s 370 of the Armed Forces Act 2006, and Sch 15 to that Act. Further
provision is made in the Armed Forces (Civilians Subject to Service Discipline) Order 2009 (SI 2009 No
836), as amended by the Armed Forces (Civilians Subject to Service Discipline) (Amendment) Order 2024
(SI 2024 No 614).
See also United Nations, Optional Protocol to the Convention on the Rights of the Child on the Involvement
of Children in Armed Conflict (New York, 25 May 2000), ratified by the United Kingdom.
Armed Forces Act 2006, s 8(3), and s 374 for relevant definitions (such as of “enemy”). Clause 11(7) of our
draft Bill provides that terms in the draft Bill have the same meaning as under the Armed Forces Act 2006.
Primarily in civil law jurisdictions, such as France: 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
Zimmerman (eds), Comparative Succession Law: Testamentary Formalities (2011) pp 441 to 443. See also
Uniform Probate Code (USA), s 2-502(b). Scotland allows “subscribed” wills, where only the signature at the
end of the document needs to be written by the testator: Requirements of Writing (Scotland) Act 1995, s 3; K
G C Reid, “Testamentary Formalities in Scotland” in K G C Reid, MJ De Waal and R Zimmerman (eds),
Comparative Succession Law: Testamentary Formalities (2011) p 418.
See Consultation Paper, para 5.71.
W Pintens, “Testamentary Formalities in France and Belgium” in K G C Reid, MJ De Waal and R
Zimmerman (eds), Comparative Succession Law: Testamentary Formalities (2011) p 57.
See Consultation Paper, para 5.72.
See para 5.2 above, and R Scalise Jr, “Testamentary Formalities in the United States of America” in K G C
Reid, MJ De Waal and R Zimmermann (eds), Comparative Succession Law: Testamentary Formalities
(2011) p 370.
Consultation Paper, Consultation Question 25.
Of those responding to Consultation Question 25, 93% were in favour and 4% were against. 3% of
consultees made other comments.
We note, however, as the Bar Council pointed out, that some jurisdictions (including a number of states of
the USA) permit holograph wills without having forced heirship as part of their law.
Scottish Law Commission, Report on Succession (2009) Scot Law Com No 215, paras 3.2 and 3.14.
Bircham Dyson Bell LLP Private Wealth Department, solicitors’ firm.
See Consultation Paper, paras 5.106 to 5.108.
See the Senior Courts Act 1981, s 126.
Wills (Deposit for Safe Custody) Regulations 1978 (SI 1978 No 1724). For further detail, see the
Consultation Paper, paras 5.110 to 5.114.
Consultation Paper, para 5.144.
Consultation Paper, para 5.115.
See Consultation paper, para 5.116.
For example, Belgium, Italy, Netherlands and Spain. See further K G C Reid, MJ De Waal and R
Zimmermann (eds), Comparative Succession Law: Testamentary Formalities (2011) pp 68, 85, 126 and
164.
Consultation Paper, Consultation Question 29.
Of those responding to Consultation Question 29, 64% agreed, 26% disagreed, and 10% made other
comments.
Thomson Snell & Passmore LLP, solicitors’ firm.
Such as when a formal or regular attestation clause is not used: Non-Contentious Probate Rules 1987 (SI
1987 No 2024), r 12.
We also note the existence of the Basel Convention of 16 May 1972 on the Establishment of a Scheme of
Registration of Wills, as raised by the European Network of Registers of Wills Association in their
consultation response. The United Kingdom has not ratified the Convention. Administration of Justice Act
1982, ss 23 to 25 provide that the Principal Registry of the Family Division shall be the national body for the
purposes of the Convention, but these provisions have not yet been brought into force.
Including New Zealand, all the Australian states, a number of states in the USA, some provinces and
territories in Canada, and South Africa.
Administration of Justice Act 1982, s 20, which allows the court to rectify a will to carry out the testator’s
intention where the will is expressed in such a way that it fails to do so because of a clerical error or a failure
to understand the testator’s instructions.
For instance, to deal with “switched wills” (where two testators making mirror wills erroneously sign each
other’s will): Marley v Rawlings [2014] UKSC 2, [2015] AC 129.
J Langbein, “Substantial compliance with the Wills Act” (1975) 88:3 Harvard Law Review 489 at 526.
Consultation Paper, para 5.81.
Consultation Paper, para 5.84. An example of a will found to be invalid for a minor breach of the formalities
can be found in Re Groffman [1969] 1 WLR 733, where the judge was “perfectly satisfied that the document
was intended by the deceased to be executed as his will and that its contents represent his testamentary
intentions”. An example of a will being lost but copies remaining can be found in the New Jersey Case of Re
Estate of Ehrlick (2012) 47 A 3d 12, where the intention-based “harmless error” dispensing power in New
Jersey law was used to give effect to the will.
Consultation Paper, para 5.83. Substantial compliance doctrine dispensing powers have been less
successful (and, in some cases, a “flop”), as we noted in that paragraph, referring to 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, paras 4.3 to 4.7.
J G Miller “Substantial compliance and the Execution of Wills” (1987) 36:3 International and Comparative
Law Quarterly 559 at 587, cited in Scottish Law Commission, Report on Succession (1990) Scot Law Com
No 124, para 4.7.
A risk highlighted by the Law Reform Committee in 1980: Twenty Second Report (The Making and
Revocation of Wills) (1980) Cmnd 7902, p 4. We noted that dispensing powers are much more established
in foreign jurisdictions now than when the Law Reform Committee was writing on this topic.
Consultation Paper, paras 5.86 and 5.87.
See our discussion of Consultation Question 27 at para 5.36 and following above.
Consultation Paper, para 5.89.
Consultation Paper, Consultation Question 28.
Consultation Paper, para 5.93.
Consultation Paper, paras 5.94 to 5.99. In respect of purely oral statements, we provisionally agreed 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”: Report on Succession (1990) Scot Law Com
No 124, para 4.14. We note that privileged wills can be made purely orally: see our discussion at para 5.107
above.
Consultation Paper, paras 5.100 and 5.101. We noted that applying a higher standard of proof (such as the
criminal standard of proof) only to the dispensing power would be inconsistent with the standard of proof that
applies to all other issues concerning a will.
Consultation Paper, paras 5.102 and 5.103.
Consultation Paper, paras 5.104 and 5.105. We noted that this ability of the court would, for example, help
address situations where a formally executed will is found after the exercise of the dispensing power.
Consultation Paper, para 5.81, n 131.
Consultation Paper, Consultation Question 28.
Of those responding to Consultation Question 28, 52% of consultees agreed, 32% disagreed, and 16% gave
other views.
Anthony Collins Solicitors LLP.
The City of Westminster and Holborn Law Society.
LawSkills Ltd. The Alzheimer’s Society made a similar point, writing that “whilst we appreciate the reasons
for the current strict certainty requirements we can see the sense of allowing some scope for the court to act
to prevent those requirements thwarting testamentary intention in appropriate cases”.
Stephen Mason, barrister and academic, and Nicholas Bohm, retired solicitor, responding together, wrote
that they supported the power “precisely because of the scrutiny that such special cases will attract and the
clarity of the evidence which in practice is likely to be required”. However, they also suggested that the
power should only apply to documents which are intended to be dispositive (rather than simply indicating a
person’s intentions), so that it should not catch, for instance, a letter of instructions to a will-maker.
The Society of Legal Scholars noted the case of Re Nichol [2017] QSC 220 as an example of the application
of a dispensing power with a very wide scope. In that case, the Queensland Supreme Court held that an
unsent text message written on a person’s mobile phone shortly before they committed suicide should be
operative as that person’s will.
A gift given donatio mortis causa is one given by a donor in contemplation of and conditional on their death,
in which they pass the property, or control over the property, to the donee. We discuss the doctrine of
donatio mortis causa in detail in Ch 15.
Dr Catrin Fflur Huws, academic.
In Ch 11, we explore the court’s rectification power under s 20 of the Administration of Justice Act 1982.
Sally-Ann Joseph, solicitor, also argued that “this will open the door even wider for potential abuse and
undue influence”.
Mills & Reeve LLP, solicitors’ firm. The Association of Corporate Trustees similarly argued that “the
suggested changes might make it easier to commit... fraud”.
Martin Elliott, will writer. Kate Pelzer, solicitor, agreed, writing that some elderly people struggle to use text
messages “and will hand phones to others”.
Martyn Frost, solicitor, Stephen Lawson, solicitor, and Professor Robin Jacoby, responding together.
Lord Walker of Gestingthorpe, former Justice of the UK Supreme Court.
CILEx noted that its members had commented that “the Chancery Division of the High Court provided
greater levels of expertise than the County Court, probate registrars and legal professionals”.
Hunters, incorporating May, May and Merrimans, solicitors’ firm, argued that the judiciary would need to be
given time to see how the power operates, but that “perhaps in due course it will be appropriate for the court
to delegate the power to a probate registrar”.
The case of Re Nichol [2017] QSC 220, is explained at n 27 above.
Wedlake Bell LLP, solicitors’ firm, who were of the view that the power should only apply where there has
been a genuine attempt to make a will in the proper form.
The Charity Law Association Working Party.
Consultees agreeing included Professor D G Barnsley, the Society of Will Writers and Estate Planning
Practitioners, and Hunters, incorporating May, May and Merrimans (solicitors’ firm).
Coffin Mew LLP, solicitors’ firm.
Amanda Steele, solicitor, who noted that the dispensing power route would be more costly and exceptional
than the cost of a properly drawn up and executed will.
The Society of Will Writers and Estate Planning Practitioners.
Heather Murphy, barrister, who asked “how will the court deal with a series of recordings, where some of the
same property is given to different people across the recordings? Will the later inconsistent statement
revoke the whole of the previous statement? What if statements are inconsistent within the same
recording?”.
[2019] EWHC 1571 (Ch), [2019] All ER (D) 167 (Jun), at [117].
This change was made in 2006 (as discussed at para 6.49 below). The temporary uncertainty was about
“informal” documents.
Most prominently by Lord Neuberger in Marley v Rawlings [2014] UKSC 2, [2015] AC 129, at [65], where he
suggested in obiter remarks that the power to rectify a will in the Administration of Justice Act 1982, s 20, is
“not limited to a will which complies with the formalities”. For the meaning of “obiter”, see the glossary.
Birke Hacker, “What’s in a Will?” in Birke Hacker and Charles Mitchell (eds), Current Issues in Succession
Law (1st ed 2016) p 153.
As well as the power we recommend for the court to save otherwise invalid gifts: see Recommendation 15
below.
Non-Contentious Probate Rules 1987 (SI 1987 No 2024), r 8; See PA10 - Probate Application - with a will
(01.24).
For example, in the New Zealand case Fitzgibbons v Fitzmaurice [2014] NZHC 710, [2014] NZAR 807, the
court did not exercise the dispensing power in respect of a suicide note because it found that at the time of
writing the note the deceased person lacked capacity.
For example, in the New Zealand case of Harris v Taylor [2015] NZHC 3190, [2016] NZAR 363, the court
confirmed that testamentary intention would be irrelevant where that intention arises from undue influence.
J H Langbein, “Excusing Harmless Errors in the Execution of Wills: A Report on Australia’s Tranquil
Revolution in Probate Law” (1987) Columbia Law Review 1.
The dispensing power originally introduced in Queensland provided that “the Court may admit to probate a
testamentary instrument executed in substantial compliance with formalities prescribed... if the Court is
satisfied that the instrument expresses the testamentary intention of the testator”: Queensland’s Succession
Act 1981, s 9(a).
Queensland’s Succession Act 1981 now provides, in s 18, that a document can form the person’s will “if the
court is satisfied that the person intended the document or part to form the person’s will.”. We briefly
discussed the change to an intention-based approach in the Consultation Paper, at para 5.83.
Jurisdictions with a narrow intention-based power include Israel, South Africa, Quebec, Prince Edward
Island, Alberta, Yukon, California, Virginia and Ohio.
Broad intention-based powers have been adopted in both the United States’ Uniform Probate Code and the
Canadian Uniform Wills Act, and can be found in seven Canadian provinces, seven US states, as well as in
Australia, New Zealand and Zimbabwe.
A distinction drawn by Dr Juliet Brook in a series of three articles published in 2018 and 2019: “To Dispense
or Not to Dispense?” (2018) 6 Private Client Business 205; (2019) 1 Private Client Business 9; and (2019) 2
Private Client Business 50.
In Alberta there is currently a narrow dispensing power. However, the Alberta Law Reform Institute has
recently recommended the adoption of a broad power. The Institute wrote that broad powers have existed in
Australian and Canadian jurisdictions for over 30 years, and “thus far it has generated only modest
quantities of litigation”: Alberta Law Reform Institute, Creation of Electronic Wills, Final Report (No 119
2023), para 513, citing A J Hirsch, “Models of Electronic-Will Legislation” (2021) 56(2) Real Property Trust
and Estate Law Journal 169.
R Jennings, Jarman on Wills (8th ed 1951) p 26, quoted with approval in Baird v Baird [1990] 2 AC 548 at
556, as cited in B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 49.
We agree with Dr Juliet Brook that “evidence that a testator had changed his mind before death should be
sufficient to prevent a document from being admitted to probate under any dispensing power”: “Succession:
to dispense or not to dispense? A comparison of dispensing powers and their judicial application” (2019) 2
Private Client Business 50 at 56.
See paras 13.51 and 13.52 below.
The limit being £350,000: County Courts Act 1984, s 23 and County Court Jurisdiction Order (SI 2014 No
503), para 3.
See, for instance, Re Nichol [2017] QSC 220, discussed at n 27 above.
We note that some consultees who objected to the inclusion of electronic records within the scope of the
dispensing power also objected to the introduction of electronic wills more generally. Electronic wills are
considered in Ch 8.
See our discussion of the different policy context of privileged wills at para 5.129 and following above.
In general, the list of evidence includes the document itself, evidence regarding the signing and witnessing
of the document, the deceased person’s testamentary intentions, and statements made by the deceased
person.
As opposed to the “court of construction”. The division between these two roles, now both performed by the
Chancery Division or the Family Division (depending on whether probate is contested or not), is due to the
history of the jurisdictional division between the probate court and the courts of equity: see A Learmonth, C
Ford, and J J Evans-Gordon, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate
(22nd 2023) para 2-17.
Other than the regular rules of evidence, albeit there are some special rules which also apply, for example,
that a witness to the will’s execution is a witness of the court rather than a party to the litigation. This flows
from the fact that the court of probate has a quasi-inquisitorial role: see A Learmonth, C Ford, and J Evans-
Gordon, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (22nd 2023) para 28-
10.
J Brook, “To Dispense or Not to Dispense?”, (2019) 2 Private Client Business 50 at 52. Dr Brook suggests
that there is a parallel with the doctrine of donatio mortis causa (which we consider in Ch 15), in respect of
which the courts require “clear proof” before accepting evidence of such a gift.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 7-025.
Under Civil Procedure Rules 1998 (SI 1998 No 3132), r 44.2(2).
Liverpool Law Society’s Non Contentious Business Committee.
Such as six months from the date of the grant of probate to claim rectification of a will (Administration of
Justice Act 1982, s 20(2)), or for a claim for financial provision under the Inheritance (Provision for Family
and Dependants) Act 1975, s 4).
See R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016)
para 19-07.
Under Senior Courts Act 1981, s 121(1). See B Sloan, Borkowski’s Law of Succession (4th ed 2020) pp 392
and 393; Re Diplock [1951] AC 251; and Morris v Brown [2017] EWHC 631 (Ch).
For instance, Alberta, British Columbia, Queensland, Victoria and New Zealand.
It is well established that references to “documents” in legislation in similar contexts include, for example,
text messages, social media messages and emails: see eg Electronic Execution of Documents (2019) Law
Com No 386, paras 2.18 and 2.19; and H M Malek, Phipson on Evidence (20th ed 2022) para 41-01.
Wills Act 1837, s 15, and Civil Partnership Act 2004, para 3(a) of Sch 4.
Consultation Paper, para 5.51.
Wills Act 1837, s 15, and Civil Partnership Act 2004, para 3(a) of Sch 4, which we discuss in the section
below.
Lewison LJ in Barrett v Bem [2012] EWCA Civ 52; [2012] Ch 573 at [144], who went on to say that
“Parliament should consider changing the law to ensure that this cannot happen in the future”.
Consultation Paper, Consultation Question 17.
Consultation Paper, Consultation Question 18.
Of those responding to Consultation Question 17, 92% of consultees agreed.
Solicitors’ firm.
Of those responding to Consultation Question 17, 5% disagreed, while 3% made other comments.
For the meaning of “ex gratia”, see the glossary.
The Charity Law Association Working Party. Bircham Dyson Bell LLP Charities Team raised a similar issue.
Of those responding to Consultation Question 18, 93% of consultees agreed.
The Society of Will Writers and Estate Planning Practitioners.
Chair of the Southport and Sefton Partnership for the Older Citizen.
Of those responding to Consultation Question 18, 4% of consultees disagreed, and 3% made other
comments.
Barrie Gore, retired solicitor.
See for example Patel v Patel [2017] EWHC 133 (Ch) at [77] and following; Loabrahams v Cook [2018] 7
WLUK 953 at [14]; and Re Ball (Deceased) [2020] 1 WLUK 544 at [92] and following.
Section 15 of the Wills Act 1837 only makes a gift invalid as to the beneficial interest given.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 25-045,
citing Re Ray’s Will Trust [1936] Ch 520, a case in which s 15 of the Wills Act 1837 was held not to apply
when the witness later became the office holder who was the beneficiary of the gift on trust.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) paras 10-011
and 10-018.
Wills Act 1837, s 15, together with para 3 of Sch 4 to the Civil Partnership Act 2004. One exception to this
rule applies where the will would have been duly executed even without the relevant witness being involved
(in other words, there were at least two other disinterested witnesses): Wills Act 1968, s 1, and para 3 of
Sch 4 to the Civil Partnership Act 2004. Additionally, a trustee acting in a professional capacity can charge
the estate for their services (if there is provision for them to do so in the will), even where they were a
witness to its execution: see the Trustee Act 2000, s 28; A Learmonth, J Clarke, K Shuman, C Ford and T
Fletcher, Theobald on Wills (19th ed 2021) para 10-017; and F Barlow, R Wallington, S Meadway, J
MacDougald and J Kirby, Williams on Wills (11th ed 2021) para 9.11. Finally, the rule does not apply in the
context of privileged wills: A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills
(19th ed 2021) para 10-015, and F Barlow, R Wallington, S Meadway, J Macdougald and J Kirby, Williams
on Wills (11th ed 2021) para 9.10.
Consultation Paper, para 5.57.
See A Learmonth, C Ford, J Evans-Gordon, Williams, Mortimer and Sunnucks on Executors, Administrators
and Probate (22nd 2023).
Twenty Second Report of the Law Reform Committee on The Making and Revocation of Wills (1980) Cmnd
7902, p 7.
The proportion of people living in a couple (and aged 16 years and over) who were cohabiting (not in a
marriage or civil partnership) increased from 19.7% in 2012 to 22.7% in 2022 (equivalent to 6.8 million
people): Office for National Statistics, Population estimates by marital status and living arrangements,
England and Wales: 2022 (25 January 2024),
https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/bulleti
ns/populationestimatesbymaritalstatusandlivingarrangements/2022 (last visited 31 March 2025).
Consultation Paper, Consultation Question 20.
Our suggested definition in the Consultation Paper, at para 5.59, drew on the meaning of cohabitant as it
then was in the Inheritance (Provision for Family and Dependants) Act 1975, ss 1A and 1B. Our suggested
definition did not include a two-year time requirement, and was therefore broader than the 1975 Act’s
approach. The 1975 Act was updated by the Civil Partnership (Opposite-sex Couples) Regulations (SI 2019
No 1458). A person is a cohabitant under the amended s 1A of the 1975 Act where “during the whole of the
period of two years ending immediately before the date when the deceased died, the person was living - (a)
in the same household as the deceased, and (b) as if that person and the deceased were a married couple
or civil partners”.
Former Justice of the UK Supreme Court.
We discuss our proposal relating to saving gifts that would otherwise be invalid at para 7.72 and following
below.
Of those responding to Consultation Question 20, 7% of consultees disagreed, and 10% made other
comments.
Wedlake Bell LLP, solicitors’ firm.
Hunters, incorporating May, May and Merrimans.
Of the consultees who responded to Consultation Question 21, 46% thought that some family members
should be included in the rule, whereas 37% thought not. 17% made other comments.
DWF LLP, solicitors’ firm, who suggested that it would be sufficient to “exclude from benefit a parent or
grandparent, child or grandchild, and sibling of the witness”.
Sheila Campbell, retired solicitor.
For instance, the Chancery Bar Association wrote that “if the witness exerts any improper pressure on the
testator to leave property to other relatives, other remedies are available”. We discuss undue influence in
detail in Ch 9.
Mills & Reeve LLP, solicitors’ firm.
Dr Brook wrote that “if the scope of family members of beneficiaries who are prevented from witnessing a
will is widened too far it risks making the formalities for a will unduly onerous and may lead to fewer people
making a will”.
In line with Consultation Question 20, discussed at para 7.29 above.
Consultation Paper, Consultation Question 19.
Of those responding to Consultation Question 19, 86% of consultees.
A similar point was made by Paul Saunders, independent trust consultant.
Of those responding to Consultation Question 19, 7% disagreed, and 7% made other comments.
Consultation Paper, para 5.59.
Former barrister and one of the editors of Williams on Wills.
Succession Act 2006 (New South Wales), s 10(3); Wills Act 2000 (Northern Territory), s 12(2); Wills Act
2008 (Tasmania), s 4(2); Succession Act 1981 (Queensland), s 11(3); cited in N Peart “Testamentary
Formalities in Australia and New Zealand” in K G C Reid, MJ De Waal and R Zimmerman (eds),
Comparative Succession Law: Testamentary Formalities (2011) p 344.
Consultation Paper, para 5.61.
Consultation Paper, Consultation Question 22.
Of those responding to Consultation Question 22, 22% were in favour and 56% were against. 22% of
consultees made other comments.
The concept of the testator making the gift “freely and voluntarily” exists in the Australian jurisdictions
referred to above. The history of “freely and voluntarily” and how it is different from (and more expansive
than) a lack of undue influence, meaning a lower bar of a lack of impropriety, was discussed in Tonkiss v
Graham [2002] NSWSC 891.
Section 5, in relation to gifts of real property in wills.
As we explain in Ch 6, the most significant change we recommend is the creation of a court power to
dispense with the formality requirements on a case-by-case basis, in Recommendation 12.
Electronic Execution of Documents (2019) Law Com No 386.
See Industry Working Group, Electronic Execution of Documents Industry Working Group Interim Report
(February 2022) and Electronic Execution of Documents Industry Working Group Final Report (February
2023).
Electronic Execution of Documents (2019) Law Com No 386, Recommendation 1.
Supplementary Consultation Paper, para 2.9.
See Consultation Paper, para 6.45; and Supplementary Consultation Paper, para 2.127.
[2022] EWCA Civ 1648, [2023] 2 WLR 122, at [67].
Above, at [56], meaning that legislation should be interpreted in a way that can include technological
developments if they satisfy the policy of the legislation.
Consultation Paper, para 6.15.
Supplementary Consultation Paper, paras 2.79 to 2.84.
Under art 2(3). See Chitty on Contracts (35th ed 2023) para 8-011.
[2009] EWHC 3341 (Ch), [2010] WTLR 661.
Consultation Paper, paras 6.22 and 6.23; Supplementary Consultation Paper, para 2.81.
A Learmonth, J Clarke, K Shuman, C Ford, and T Fletcher, Theobald on Wills (19th ed 2021) para 3-012,
citing Re Emerson (1882) 9 LR Ir 443.
Jenkins v Gaisford (1863) 3 Sw & Tr 93. A stamped signature was more recently accepted, although the
point was not at issue, in Perrins v Holland [2009] EWHC 1945 (Ch), (2009) WTLR 1387, affirmed at [2010]
EWCA Civ 840, [2011] Ch 270.
Supplementary Consultation Paper, para 2.83.
And, where relevant, the person signing on the testator’s behalf.
J Brook, “Why video-witnessing of wills could sound the death knell for formalities as an end in themselves”
(2021) Conveyancer and Property Lawyer 252; and Nicholas Bevan, “Where there’s a will, there’s a way”
(2020) 170 New Law Journal 7889.
Electronic Execution of Documents (2019) Law Com No 386, para 5.35. See also Industry Working Group,
Electronic Execution of Documents Industry Working Group Interim Report (February 2022) p 15.
See Wills Act 1837, s 9(2) as amended by the Wills Act 1837 (Electronic Communications) (Amendment)
(Coronavirus) Order 2020 (SI 2020 No 952) and then Wills Act 1837 (Electronic Communications)
(Amendment) Order (SI 2022 No 18), introduced under the Electronic Communications Act 2000, s 8. This
amendment only applies to wills executed between 31 January 2020 and 31 January 2024.
Other than in Electronic Commerce: Formal Requirement in Commercial Transactions (2001) Advice from
the Law Commission, para 3.45.
Consultation Paper, para 6.111. See eg Taylor v Holt (2003) 134 SW 3d 830 (Tennessee Court of Appeal);
Rioux v Coulombe (1996) 19 ETR (2d) 201 (Quebec Superior Court); and In the Estate of Wilden
(Deceased) [2015] SASC 9 (Supreme Court of South Australia).
We discuss dispensing powers in detail in Ch 6 and recommend the introduction of a dispensing power in
Recommendation 12.
Consultation Paper, para 6.36.
Consultation Paper, paras 6.39 and 6.40; and Consultation Question 30.
See Consultation Paper, Consultation Questions 32, 33 and 34.
Consultation Paper, para 6.45, and Consultation Question 31.
Approximately 35% agreed and 55% disagreed.
Approximately 90% agreed with this provisional proposal in Consultation Question 31.
Electronic Execution of Documents (2019) Law Com No 386; Electronic Trade Documents: Report and Bill
(2022) Law Com No 405, leading to the Electronic Trade Documents Act 2023.
A group created on our recommendation in Electronic Execution of Documents (2019) Law Com No 386.
Industry Working Group, Electronic Execution of Documents Industry Working Group Final Report (February
2023) pp 42 and 77 to 78.
Under the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020 (SI 2020 No
952) and then Wills Act 1837 (Electronic Communications) (Amendment) Order 2022 (SI 2022 No 18),
introduced under the Electronic Communications Act 2000, s 8. This amendment applies to wills executed
between 31 January 2020 and 31 January 2024.
See Supplementary Consultation Paper, para 2.91 and following.
Supplementary Consultation Paper, para 2.127.
Supplementary Consultation Paper, para 2.7.
See para 5.2 above.
Industry Working Group, Electronic Execution of Documents Industry Working Group Interim Report
(February 2022) pp 21 to 22 and 52 to 53.
Supplementary Consultation Paper, paras 2.127 to 2.160.
Supplementary Consultation Paper, para 2.168.
Supplementary Consultation Paper, Supplementary Consultation Question 1.
Supplementary Consultation Paper, paras 2.173 to 2.177.
Supplementary Consultation Paper, paras 2.182 to 2.187.
Supplementary Consultation Paper, Supplementary Consultation Question 2.
Supplementary Consultation Paper, Supplementary Consultation Question 3.
Supplementary Consultation Paper, Supplementary Consultation Question 4.
Of those responding to Supplementary Consultation Question 1, 46% were in favour of electronic wills being
made valid, 41% were opposed, and 13% expressed other views.
When a clear majority did not support the introduction of an enabling power: approximately 55% were
opposed, and only approximately 35% agreed.
For example, the Chancery Bar Association.
Of those responding to Supplementary Consultation Question 2, 43% favoured an enabling power, 47%
favoured provision on the face of the Act, and 10% choose neither option but made comments.
Of those responding to Supplementary Consultation Question 3(1), 43% were in favour of neutrality, 37%
were against, and 20% made other comments.
Of those responding to Supplementary Consultation Question 3(2), 77% were in favour of functional
equivalence, 10% were opposed, and 13% made other comments.
Of those responding to Supplementary Consultation Question 3(3), 79% were in favour, 9% were opposed,
and 12% made other comments.
Of those responding to Supplementary Consultation Question 3(4), 60% were in favour, 20% were opposed,
and 20% made other comments.
Of those responding to Supplementary Consultation Question 3(5), 70% were in favour, 11% were against,
and 19% made other comments.
Supplementary Consultation Question 4.
See para 8.33 above.
Ministry of Justice, Guidance on making wills using video-conferencing (25 July 2020),
https://www.gov.uk/guidance/guidance-on-making-wills-using-video-conferencing (last visited 31 March
2025). See para 8.153 below.
The ISO 19005 standard regulates digital long-term archiving of PDF/A file formats, ensuring that
information such as electronic signatures and metadata are embedded within the document. Although, these
standards do not define or regulate revision-safe archiving. It includes four, parallel, specifications for PDF/A
file formats: PDF/A-1 (ISO 19005-1:2005), PDF/A-2 (ISO 19005-2:2011), PDF/A-3 (ISO 19005-3:2011) and
PDF/A-4 (ISO 19005-4:2020, which is expected to be replaced soon by ISO/DIS 19005-4).
Professor Tina Cockburn (Australia), Professor Bridget Crawford (New York), Professor Margaret Hall
(Canada), and Associate Professor Kelly Purser (Australia).
As opposed to not permitting them or permitting them by interpretation of the existing requirements under
Wills Act 1837, s 9. See para 8.180 below.
And bearing in mind the approaches taken in other jurisdictions: see Supplementary Consultation Paper,
para 2.91 and following.
As “writing” is defined in the Interpretation Act 1978, Sch 1. See para 8.22 above. We have previously
interpreted this to mean a visual representation, such as display of words on a screen (as opposed to files of
binary or digital information): Law Commission, Electronic Commerce: Formal Requirements in Commercial
Transactions (2001) paras 3.7 to 3.17.
See Supplementary Consultation Paper, paras 2.40, 2.72, 2.129, 2.147, 2.150, and 2.152.
However, a recording could be accepted as a formally valid will under the dispensing power: see Ch 6.
See para 11.8 below, citing B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 201.
See eg the fraud discussed in V Sankaran, “Fraudsters use deepfake technology to trick employee into
paying millions” (5 February 2024) The Independent, https://www.independent.co.uk/tech/deepfake-fraud-
employee-millions-scam-b2490582.html (last visited 31 March 2025).
The concept of reliability is also used in Electronic Trade Documents Act 2023, s 2(2) which requires the use
of a “reliable system”.
See eg Patel v Patel [2017] EWHC 133 (Ch) at [77] and following; Loabrahams v Cook [2018] 7 WLUK 953
at [14]; Re Ball (Deceased) [2020] 1 WLUK 544 at [92] and following; and Fraser v Khawaja [2023] EWHC
3143 (Ch) at [30] to [32]; and May v Middlemas [2024] EWHC 2761 (Ch) at [19] to [23].
A Learmonth, C Ford and J Evans-Gordon, Williams, Mortimer and Sunnucks on Executors, Administrators
and Probate (22nd 2023) para 14-05. See also Non-Contentious Probate Rules 1987 (SI 1987 No 2024), r
12.
See Supplementary Consultation Paper, para 2.137 and following. A recent case illustrates perhaps why
such a fraud is unlikely to be successful. In Fraser v Khawaja [2023] EWHC 3143 (Ch) the purported will
gave the entire estate to a named person, described as the deceased’s friend, at a nonsensical address in
Pakistan. No trace of this beneficiary could be found, and the testator had no links to Pakistan. The
defendant in the case claimed to be the unknown beneficiary’s attorney, who had obtained a grant of
probate and immediately put the testator’s property on the market. This fraud was discovered by the
testator’s cousins, who apparently had no contact with the testator during his life. The court referred the
matter to police for investigation.
Expert evidence showed that the signature was genuine but was older than the signatures of the witnesses,
and that there was the impression of another of the testator’s signatures on the will, consistent with her pre-
signing documents in a stack: [2017] EWHC 133 (Ch).
See eg Which? “Face recognition on 40% of new phones easily spoofed with a printed photo” (19 May
2023), https://www.which.co.uk/news/article/face-recognition-mobile-phones-axNDM2P9VvyO (last visited
31 March 2025).
Or acknowledge their signature.
A topic we discuss in detail in Ch 9.
See eg Re Dimberlaine (Deceased) [2022] EWHC 2202 (Ch).
See eg Watts v Watts [2014] EWHC 668 (Ch).
See para 8.41 above. The procedure required the paper will to be transmitted in turn between the testator
and witnesses, with a video conference of all three taking place each time one of them signed the
document, with steps to confirm that the same document was being signed on each occasion. If the testator
died before each had signed, the will might not be valid: see Ministry of Justice, Guidance on making wills
using video-conferencing (12 January 2022), https://www.gov.uk/guidance/guidance-on-making-wills-using-
video-conferencing (last visited 31 March 2025).
Copies can be proved where the original will is missing, but what is still being proved is the original will: see
A Learmonth, C Ford and J Evans-Gordon, Williams, Mortimer and Sunnucks on Executors, Administrators
and Probate (22nd ed 2023) para 15-02. It should be noted that sometimes wills are executed in duplicate.
In this case, the two documents make up one will. This is uncommon, due to the confusion it causes,
particularly in relation to revocation by destruction. In order to prove the duplicate will, and that it has not
been revoked by destruction, all duplicates must be produced on application for proof: see A Learmonth, C
Ford and J Evans-Gordon, Williams, Mortimer and Sunnucks on Executors, Administrators and Probate
(22nd ed 2023) paras 10-06 and 10-07, citing Non-Contentious Probate Rules 1987 (SI 1987 No 2024), r
15.
For example, with documents being saved to the cloud or in download folders.
Proposal for the Regulation of the European Parliament and of the Council amending Regulation (EU) No
910/2014 as regards establishing a framework for a European Digital Identity, Article 45g.
Wills Act 1837, s 21. A Learmonth, C Ford and J Evans-Gordon, Williams, Mortimer and Sunnucks on
Executors, Administrators and Probate (22nd ed 2023) para 14-09; A Learmonth, J Clarke, K Shuman, C
Ford, and T Fletcher, Theobald on Wills (19th ed 2021) paras 6-005 and 6-006.
By which we mean unable to be edited.
See also M Johnson, “Modernisation of will-making formalities requires a fulsome embrace of technology”
(2025) 31(2) Trusts and Trustees 56.
However, there are industry standards like ISO 19005, designed to ensure that documents meeting this
standard can be reliably reproduced in the future. In a PDF/A document, the information is embedded in the
document so that its exact content is reproduced irrespective of the platform used to open it.
Or even that a copy could be used as evidence to prove the original will. We see no reason why a copy of
an electronic will could not be used to prove an electronic will just as a copy of a paper will can: see Non-
Contentious Probate Rules 1987 (SI 1987 SI 2024), r 54.
Land Registration Act 2002, para 1 of Sch 8.
Supplementary Consultation Question 3. See para 8.68 and following above.
Supplementary Consultation Question 3(5).
See para 8.44 above.
See Wills Act 1837, ss 20, 21 and 22.
We have actively considered whether the rules governing revocation should be amended, in Ch 13. We do
not recommend any changes to how a testator may actively revoke their will. However, we do recommend,
in Recommendation 30, that a will should no longer be automatically revoked when a person gets married or
enters a civil partnership. We are not aware of problems in relation to the rules governing alteration or
revival and have not consulted on reform on those topics.
See Re Adams (Deceased) [1990] Ch 601, [1990] 2 WLR 924; and generally A Learmonth, J Clarke, K
Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 6-008.
See B Sloan, Borkowski’s Law of Succession (4th ed 2020) pp 177 to 178.
See paras 8.154 to 8.164 above.
See paras 13.11 and 13.12 below.
The damage will also be presumed to have been done by the testator.
See A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) paras 7-
057 and 7-058.
A crypto-token public address the private key to which is inaccessible. This type of address is normally used
to remove tokens from circulation, thus reducing the total number and so “burning” or “destroying” them.
A point we noted in the Supplementary Consultation Paper, having been raised by a consultee in response
to the Consultation Paper: Supplementary Consultation Paper, paras 2.48 and 2.169.
A Learmonth, J Clarke, K Shuman, C Ford, and T Fletcher, Theobald on Wills (19th ed 2021) paras 3-033 to
3-035.
See Supplementary Consultation Paper, para 2.169.
See para 11.28 below.
Indeed, in the digital context, “burning” can mean the opposite of destroying, such as “burning a disc”.
Draft Bill, cl 24(3) and para 16 of Sch 4.
Sometimes referred to as “inter vivos” gifts. See the glossary for the meaning of “inter vivos”.
Royal Bank of Scotland Plc v Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 at [13].
H Beale, Chitty on Contracts (35th ed 2023) para 11-081. See Consultation Paper, para 7.36.
Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923, 967, as cited in H Beale, Chitty
on Contracts (35th ed 2023) para 11-097.
Royal Bank of Scotland v Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 at [14] by Lord Nicholls. See
Consultation Paper, paras 7.37 to 7.38.
Royal Bank of Scotland Plc v Etridge (No.2) [2001] UKHL 44, [2002] 2 AC 773 at [16] and [20] by Lord
Nicholls.
J McGhee and S Elliott, Snell’s Equity (34th ed 2020) paras 8-009, 8-035 and 15-001.
Consultation Paper, para 7.52; J McGhee QC, Snell’s Equity (34th ed 2022) para 8-021.
Boyse v Rossborough (1857) 6 HLC 2 at [48] to [49].
Or, more simply, without convincing the testator that it is what they want to or should do.
[2007] EWHC 1119 (Ch), [2007] WTLR 1387 at [47]. We have omitted subparagraph vii), considering
fraudulent calumny, a type of fraud, which is another ground for invalidating a will.
Consultation Paper, para 7.55 citing 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.
Consultation Paper, para 7.55; M Allardice, “The vulnerable testator and undue influence” [2017] Elder Law
Journal, 10, pp 13 to 14. In Cowderoy v Cranfield [2011] EWHC 1616 (Ch), [2011] WTLR 1699 at [141], 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”. This view was endorsed in Wharton v Bancroft
[2011] EWHC 3250 (Ch), [2012] WTLR 693 at [30] and Schomberg v Taylor [2013] EWHC 2269 (Ch), [2013]
WTLR 1413 at [30]. In Rea v Rea [2024] EWCA Civ 169, [2024] WTLR 701 the Court of Appeal confirmed
that the standard is the balance of probabilities, meaning that undue influence must be the most probable
hypothesis.
See A Learmonth, J Clarke, K Shuman, C Ford, T Fletcher, Theobald on Wills (19th ed 2021) para 4-060.
Consultation Paper, paras 7.59 to 7.60.
Hoff v Atherton [2004] EWCA Civ 1554, [2005] WTLR 99 at [64], as approved in Gill v Woodall [2010]
EWCA Civ 1430, [2011] Ch 380 at [71] to [72] by Lloyd LJ.
We discuss testamentary capacity in detail in Ch 2.
Bond v Webster [2024] EWHC 1972 (Ch), [2024] ALL ER 9 at [466].
Key v Key [2010] EWHC 408 (Ch), [2010] 1 WLR 2020, at [116].
Simon v Byford [2014] EWCA Civ 280, [2014] WTLR 1097, by Lewison LJ. For a recent analysis, see
Tucker v Felton-Page [2025] EWHC 530 (Ch) at [42] to [47].
Greaves v Stolkin [2013] EWHC 1140 (Ch), [2013] WTLR 1793; see Consultation Paper, para 7.11; A
Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) paras 4-042 to 4-
043.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 4-047.
Consultation Paper, paras 7.15 to 7.16.
Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380 at [14]; A Learmonth, J Clarke, K Shuman, C Ford and
T Fletcher, Theobald on Wills (19th ed 2021) para 4-043, citing Graves v Stolkin [2013] EWHC1140 (Ch),
[2013] WTLR 27 at [73].
Consultation Paper, para 7.17.
Consultation Paper para 7.20, Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380 at [22] citing Re Crerar
(unreported) (1956) 106 LJ 694, p 695, which decision was followed in Re Morris [1971] P 62, p 78. See
also Biria v Biria [2024] EWHC 121, [2024] WTLR 785 at [116] to [117]; Middleton v Boorman [2020] EWHC
1481 (Ch), [2020] ALL ER 72 at [79]; Nutt v Nutt [2018] EWHC 851 (Ch) at [35] to [36].
Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380 at [22] citing Re Crear (unreported) (1956) 106 LJ
694, p 695, which decision was followed in Re Morris [1971] P 62, p 78; see Consultation Paper, para 7.20.
[2022] EWHC 159 (Ch), [2022] ALL ER 2 at [338].
Biria v Biria [2024] EWHC 121, [2024] WTLR 785 at [116] to [118].
Under Civil Procedure Rules 1998 (SI 1998 No 3132), r 44.2(2).
Spiers v English [1907] P 122 at 123, Civil Procedure Rules 1998 (SI 1998 No 3132) r 57.7(5). See
Consultation Paper, para 7.132. For a recent discussion of these exceptions, see Leonard v Leonard [2024]
EWHC 979 (Ch), [2024] Costs LR 723.
Re Cutliffe [1959] P 6. See eg Spiers v English [1907] P1 2 and Summerell v Clements (1862) 3 SW & Tr 35
at [37]. However, see eg Mitchell v Gard (1863) 3 Sw & tr 78 where the court found that the conduct of the
beneficiary and “the suspicions which flowed from it” meant that the costs of the party who challenged the
will were to be paid out of the estate even though the claim of undue influence had failed.
Consultation Paper, para 7.83, quoting R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law
of Succession (13th ed 2016) para 5-45.
Consultation Paper, paras 7.64 and 7.7 to 7.80.
Consultation Paper, para 7.94.
We noted the view of Professor Roger Kerridge in R Kerridge (assisted by A H R Brierley) Parry and
Kerridge: The Law of Succession (13th ed 2016) ch VI. There he identified several reasons for claimants
inappropriately invoking knowledge and approval instead of undue influence (or fraud), which he considers
to be a cause for concern. For example, he suggests that the claim for want of knowledge and approval in
Fuller v Strum [2001] EWCA Civ 1879, [2002] 1 WLR 1097, Sherrington v Sherrington [2006] EWCA Civ
1784, [2007] ALL ER 9 and Hawes v Burgess [2013] EWCA Civ 94, [2013] WTLR 453 cloaked allegations of
undue influence.
Consultation Paper, para 7.94.
Consultation Paper, para 7.95.
See R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The Law of Succession (13th ed 2016)
paras 5-37 to 5-48.
J Brook, “The Neighbour, The Carer and The Old Friend - the Complex World of Testamentary Capacity”,
[2017] Modern Studies in Property Law 119.
Consultation Paper, paras 7.87 to 7.90.
Consultation Paper, para 7.96.
Consultation Paper, paras 7.100 to 7.105.
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”.
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.
Consultation Paper, para 7.101.
M Allardice, “The vulnerable testator and undue influence” [2017] Elder Law Journal 10 at 18.
Consultation Paper, para 7.102.
Consultation Paper, para 7.103. Although we noted 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:
Consultation Paper, para 7.104.
Consultation Paper, Consultation Question 36.
[2007] EWHC 1119 (Ch), [2007] WTLR 1387, at [47].
Consultation Paper, para 7.110.
Consultation Paper, para 7.113.
Consultation Paper, para 7.115; Consultation Question 38(2).
Consultation Paper, paras 7.119 to 7.120.
Consultation Paper, para 7.123.
Consultation Paper, para 7.125.
See para 9.10 above; Consultation Paper, para 7.126.
Consultation Paper, paras 7.128 to 7.129.
Consultation Paper, para 7.129.
Consultation Paper, Consultation Question 36.
Consultation Paper, Consultation Question 37.
Consultation Paper, Consultation Question 38.
Of those responding to Consultation Question 36, approximately 75% agreed, 17% disagreed and 8%
expressed other views.
Paul Saunders, independent trust consultant.
Former Justice of the UK Supreme Court.
Former barrister and one of the editors of Williams on Wills.
Of those responding to Consultation Question 37, approximately 74% agreed, 10% disagreed and 7%
expressed other views.
Of those responding to Consultation Question 38(1).
Royal College of Psychiatrists.
The Royal College of Psychiatrists; and Martyn Frost, solicitor, Stephen Lawson, solicitor, and Professor
Robin Jacoby, responding together (with reference to the case of Pearce v Beverley [2013] EWHC 2627
(Ch)).
Alastair Brierley; and Martyn Frost, Stephen Lawson, and Professor Robin Jacoby, responding together.
Of those responding to Consultation Question 38(2), approximately 55% were in favour, 20% were in
against and 26% expressed other views.
As well as Dr Juliet Brook; and Martyn Frost, Stephen Lawson, and Professor Robin Jacoby, responding
together.
Consultation Paper, para 7.55. See Re Edwards (Deceased) [2007] EWHC 1119 (Ch), [2007] WTLR 1387,
at [47].
For example, in Abdelnoor v Baker [2022] EWHC 1468 (Ch), [2022] ALL ER 57 the court thought the Re
Edwards (Deceased) standard was “overstated” and the civil standard should apply instead. In Pattinson v
Winsor [2023] EWHC 3169 the court, citing Carapeto v Good & Ors [2002] EWHC 640 (Ch), [2002] ALL ER
141, approved the interpretation in Theobald on Wills that “the true test is whether undue influence is the
most likely hypothesis, having regard to the inherent unlikelihood of someone practising undue influence on
a testator”: A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021)
para 4-060.
Rea v Rea [2024] EWCA Civ 169, [2024] WTLR 701.
Rea v Rea [2024] EWCA Civ 169, [2024] WTLR 701 at [31] to [32]; Carapeto v Good [2002] EWHC 640
(Ch), [2002] WTLR 801 and 1305 at [125].
[2024] EWHC 2289 (Ch) at [111].
Chin v Chin [2019] EWHC 523 (Ch); Whittle v Whittle [2022] EWHC 925 (Ch), [2022] WTLR 1153; Jones v
Jones [2023] EWHC 1457, [2023] ALL ER 68 (Ch); Biria v Biria [2024] EWHC 121 (Ch), [2024] WTLR 785;
and Oliver v Oliver [2024] EWHC 2289 (Ch). We are also aware of an unreported case, Langley v Quinn (12
April 2024) County Court at Central London (unreported), where undue influence was successfully claimed.
Copley v Winter [2023] EWHC 1712, [2023] ALL ER 37 at [109].
[2024] EWHC 121 (Ch), [2024] WTLR 785.
[2023] EWHC 1457 (Ch), [2023] ALL ER 68.
Langley v Quinn (12 April 2024) County Court at Central London (unreported).
Above, at [128]. The court also determined that the testator had lacked testamentary capacity.
[2022] EWCA Civ 386, [2022] 3 WLR 153, by Asplin LJ at [79].
[2013] EWHC 2269 (Ch), [2013] WTLR 1413.
Consultation Paper, para 7.57.
[2024] EWHC 121 (Ch), [2024] WTLR 785 at [136].
Rea v Rea [2024] EWCA Civ 169, [2024] WTLR 701 at [45].
See Consultation Paper, para 7.92.
Abdelnoor v Barker [2022] EWHC 1468 (Ch), [2022] ALL ER 57 at [59].
See paras at 9.38 to 9.43 above.
See para 9.74 above.
STEP; the Law Society; the Law Society of Northern Ireland; Dr Juliet Brook; and Irwin Mitchell LLP, a
solicitors’ firm.
Copley v Winter [2023] EWHC 1712, [2023] ALL ER 37 at [109].
[2007] EWHC 1119 (Ch), [2007] WTLR 1387.
Hall v Hall (1865-69) LR 1 P&D 481. See A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher,
Theobald on Wills (19th ed 2021) para 4-057.
Consultation Paper, paras 7.59 and 7.60.
J McGhee and S Elliott, Snell’s Equity (34th ed 2020) para 8-015.
[2007] EWHC 1119 (Ch), [2007] WTLR 1387 at [47].
(1885) 11 PD 81 at [82] to [83]. See also A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher,
Theobald on Wills (19th ed 2021) para 4-061.
Chin v Chin [2019] EWHC 523 (Ch) at [119].
[2024] EWHC 2289 (Ch) at [128], [87] to [89].
Rea v Rea [2024] EWCA Civ 169, [2024] WTLR 701 at [45].
Jones v Jones [2023] EWHC 1457 (Ch), [2023] ALL ER 68 at [61].
Of those responding to Consultation Question 37, approximately 74% agreed, 10% disagreed and 7%
expressed other views.
In response to Consultation Question 38(1).
Consultation Paper, para 7.112.
Consultation Paper, para 7.115.
For example, Jones v Jones [2023] EWHC 1457 (Ch), [2023] ALL ER 68; Nutt v Nutt [2018] EWHC 851
(Ch); Coles v Reynolds [2020] EWHC 2151 (Ch), [2021] P&CR DG8; Whittle v Whittle [2022] EWHC 925
(Ch), [2022] WTLR 1153; Rea v Rea [2024] EWCA Civ 169, [2024] WTLR 701; Leropoullos v Wilson [2023]
EWHC 2814 (Ch), [2023] ALL ER 47; Pattinson v Winsor [2023] EWHC 3169 (Ch), Biria v Biria [2024]
EWHC 121 (Ch), [2024] WTLR 785.
Langley v Quinn (12 April 2024) County Court at Central London (unreported); Chin v Chin [2019] EWHC
523 (Ch).
Schomberg v Taylor [2013] EWHC 2269 (Ch), [2013] ALL ER 74.
Chancery Bar Association and Amanda Steele, solicitor.
Consultation Paper, para 7.119.
Consultation Paper, paras 7.120 and 7.121.
Shrader v Shrader [2013] EWHC 466 (Ch), [2013] ALL ER 89 at [57] and [97] (iii); Jones v Jones [2023]
EWHC 1457 (Ch), [2023] EWHC 1457 (Ch) at [69]; Langley v Quinn (12 April 2024) County Court at Central
London (unreported) at [216].
Whittle v Whittle [2022] EWHC 925 (Ch) at [64], [2022] WTLR 1153; Shrader v Shrader [2013] EWHC 466
(Ch), [2013] ALL ER 89 at [64], [97] (vii), Biria v Biria [2024] EWHC 121 (Ch), [2024] WTLR 785 at [145].
Biria v Biria [2024] EWHC 121 (Ch), [2024] WTLR 785 at [14], Oliver v Oliver [2024] EWHC 2289 (Ch) at
[61], Jones v Jones [2023] EWHC 1457 (Ch), [2023] EWHC 1457 (Ch) at [69].
Jones v Jones [2023] EWHC 1457 (Ch), [2023] EWHC 1457 (Ch) at [71], Shrader v Shrader [2013] EWHC
466 (Ch), [2013] ALL ER 89 at [97] (ix).
Chin v Chin [2019] EWHC 523 (Ch).
Biria v Biria [2024] EWHC 121 (Ch), [2024] WTLR 785; Jones v Jones [2023] EWHC 1457 (Ch), [2023]
EWHC 1457 (Ch) at [65].
Langley v Quinn (12 April 2024) County Court at Central London (unreported).
Consultation Paper para 7.53; Re Edwards [2007] EWHC 1119 (ch), [2007] WTLR 1387, at [47].
[2022] EWHC 1468 (Ch), [2022] ALL ER 57 at [65(6)], [67(5)] and [69].
Consultation Paper para 7.102.
[2022] EWCA Civ 386, [2022] 3 WLR 153, by Asplin LJ at [79].
See para 9.103 above.
Consultation Paper, para 7.121.
See Consultation Paper, para 7.83, quoting R Kerridge (assisted by A H R Brierley) Parry and Kerridge: The
Law of Succession (13th ed 2016) at para 5-17.
See Consultation Paper, paras 7.61 to 7.63.
Kunicki v Hayward [2016] EWHC 3199 (Ch), [2017] 4 WLR 32 at [122] to [123]. A person who claims
fraudulent calumny must also show that the false representation was made for the purpose of inducing the
testator to alter their testamentary dispositions and that, on the balance of probabilities, the will was made
only because of this representation, Christodoulides v Marcou [2017] EWHC 2632 (Ch), [2017] EWHC 2632
at [58] to [60]; St Clair v King [2022] EWHC 40, [2022] WTLR 703 (Ch) at [152].
For example, Bircham Dyson Bell LLP Charities team.
For example, see the College of Will Writing, Undue Influence and Wills (2021),
https://www.collegewillwriting.co.uk/course/june-online-cpd-2021/undue-influence-2/ (last visited 31 March
2025).
Consultation Paper, paras 7.87 to 7.90, and 7.145.
Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380 at [14], by Lord Neuberger citing Fuller v Strum [2001]
EWCA Civ 1879, [2002] 1 WLR 1097, by Chadwick LJ at [59].
Consultation Paper, para 7.144 to 7.146.
[2004] EWCA Civ 1554, [2005] WTLR 99 at [64] by Chadwick LJ.
[2010] EWCA Civ 1430, [2011] Ch 380.
[2010] EWHC 2314 (Ch), (2010) SJLB 34.
[2010] EWCA Civ 840, [2011] Ch 270 at [64].
Consultation Paper, Consultation Question 40.
[2010] EWCA Civ 1430, [2011] Ch 380.
Consultation Paper, para 7.12; Guardhouse v Blackburn (1886) 1 P & D 109 at 116.
See paras 2.118 and 2.119 above.
[2010] EWCA Civ 840, [2011] Ch 270 at [55].
Re Flynn [1982] 1 WLR 310 at 319 to 320; In the Estate of Wallace [1952] 2 TLR 925.
[2010] EWCA Civ 840, [2011] Ch 270.
Consultation Paper, para 7.74.
Consultation Paper, Consultation Question 35.
Of those responding to Consultation Question 40, approximately 87% agreed, 7% disagreed and 7%
expressed other views.
Referring to the rule in Allhusen v Whitell (1867) LR 4 Eq 295 that determines the apportionment of a life
tenant’s entitlement to income of the residuary estate from the date of the testator’s death.
Of those responding to Consultation Question 35, approximately 88% agreed, 8% disagreed, 4% expressed
other views.
[2024] EWHC 1972 (Ch), [2024] ALL ER 9 at [15], citing Burns v Burns [2016] EWCA Civ 37 at [52].
[2022] EWHC 159 (Ch) at [17], in which the court pronounced against a later will for other reasons.
[2010] EWHC 2314 (Ch), (2010) SJLB 34.
[2004] EWCA Civ 1554, [2005] WTLR 99 at [64] by Chadwick LJ.
Hoff v Atherton [2004] EWCA Civ 1554, [2005] WTLR 99 at [64] by Chadwick LJ.
Consultation Paper, para 7.10.
[2004] EWCA Civ 1554, [2005] WTLR 99 at [64] by Chadwick LJ.
[2010] EWCA Civ 1430, [2011] Ch 380 at [71] to [72] by Lloyd LJ.
See for example Leropoullos v Wilson [2023] EWHC 2814 (Ch), [2023] ALL ER 47 at [27]; Fraser v Khawaja
[2023] EWHC 3143 (Ch) at [24] to [25] citing A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher,
Theobald on Wills (19th ed 2021) para 4-042; Skillet v Skillet at [2022] EWHC 233 (Ch) at [21]; Mason v
Robinson Solicitors [2019] EWHC 4055 (Ch) at [23]; Costa v Germain [2019] EWHC 3324 (Ch) at [55].
Leonard v Leonard [2024] EWHC 321 (Ch) at [167].
Above, at [483]. The High Court has already decided that a will was invalid for lack of testamentary capacity
before it considered the claim for want of knowledge and approval.
[2023] EWHC 1982 (Ch) at [294].
[2022] EWHC 1468 (Ch), [2022] ALL ER 57.
Wilkinson v Hicken [2023] EWHC 1983 (Ch) at [36].
[2024] EWHC 121 (Ch) at [115].
Consultation Paper, para 7.149.
Hoff v Atherton [2004] EWCA Civ 1554, [2005] WTLR 99 at [64].
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) 4-042.
Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380 at [72].
See para 9.185 above.
See para 9.198 above.
See eg Graves v Stolkin [2013] EWHC1140 (Ch), [2013] WTLR 27, at [73] and Fitzgerald v Henerty [2016]
EWCA Civ 701, as cited in A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills
(19th ed 2021) 4-043.
See para 9.184 above.
[2024] EWHC 1972 (Ch), [2024] EWHC 1972 (Ch).
See Consultation Paper, paras 7.147 and 7.148.
Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380 at [14] affirmed in Gupta v Gupta [2018] EWHC 1353
(Ch), [2018] ALL ER 126 at [50]; A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on
Wills (19th ed 2021) 4-047.
See para 2.125 above.
[2010] EWCA Civ 840, [2011] Ch 270.
See eg Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380 at [14], where Lord Neuberger referred to
them applying as a “matter of commonsense and authority”.
Civil Procedure Rules 1998 (SI 1998 No 3132), r 44.2.
Consultation Paper, para 7.132, citing Spiers v English [1907] P 122 at 123 and Civil Procedure Rules 1998
(SI 1998 No 3132), r 57.7(5).
Consultation Paper, para 7.134.
Consultation Paper, para 7.135.
Consultation Paper, Consultation Question 39.
From Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, [1985] 3 WLR 830.
Wills Act 1837, s 7. This rule does not apply to privileged wills: see Ch 5.
Representation of the People Act 1983, s 1(d). The age to vote in local elections is 18 in England (s 2(1)(d)
England and Northern Ireland), and, as of 2021, the age in Wales is 16 (s 2(1)(d) and (1A) Wales).
Licensing Act 2003, s 149; Children and Young Persons (Sale of Tobacco etc) Order 2007 (SI 2007 No
767); and Marriage Act 1949, s 2, as amended by the Marriage and Civil Partnership (Minimum Age) Act
2022, s 1(2), respectively. At the time of the Consultation Paper, the age to marry was 16, with 16- and 17-
year-olds able to marry with parental consent.
Government of Wales Act 2006, s 12; Armed Forces (Enlistment) Regulations 2009 (SI 2009 No 2057), regs
4 and 5 (subject to parental consent); Education Act 1996, s 8; Sexual Offences Act 2003, s 9; and Mental
Health Act 1983, s 131 and Family Law Reform Act 1969, s 8, respectively.
Age of Legal Capacity (Scotland) Act 1991, s 2(2); and Wills, Estates and Succession Act 2009 (BC), s 36.
Succession Act 2006 (NSW), s 16.
Wills and Succession Act 2010, s 36(1).
M Glover, “Rethinking the Testamentary Capacity of Minors” (2014) 79 Missouri Law Review 69.
Consultation Paper, paras 8.20 to 8.23.
Family Law Reform Act 1969, s 8.
See para 10.7 above.
See Consultation Paper, paras 8.24 to 8.27.
Consultation Paper, Consultation Question 41.
Consultation Paper, para 8.29.
From Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, [1985] 3 WLR 830.
Consultation Paper, para 8.30. See Clarke Hall & Morrison on Children (2024:119) Division 16, Ch 1, B[43].
Consultation Paper, para 8.31.
In the Australian states of Queensland, Victoria, New South Wales, and South Australia.
Consultation Paper, paras 8.36 to 8.44.
Consultation Paper, Consultation Question 42.
Of those responding to Consultation Question 41, 56% agreed, 32% disagreed, and 12% expressed other
views.
Representation of the People Act 1983, s 1(d).
It is now no longer possible to marry or form a civil partnership at 16- or 17-years-old with parental consent:
Marriage and Civil Partnership (Minimum Age) Act 2022, ss 1(2) and 3(2).
Armed Forces (Enlistment) Regulations 2009 (SI 2009 No 2057), regs 4 and 5.
The Society of Legal Scholars explained that if a child wishes to refuse medical treatment, even if they are
over the age of 16 and/or competent according to the common law test, valid consent to the treatment can
instead be given by a person with parental responsibility over them. It also noted that, even where both child
and the person with parental responsibility refuse consent, the court can declare the proposed treatment
lawful if it is in the best interests of the child. See eg Re R (A Minor) (Wardship: Consent to Treatment)
[1992] Fam 11; Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64; and Re P (Medical
Treatment: Best Interests) [2003] EWHC 2327 (Fam), [2004] 2 FLR 1117. More recently, see Re X (A Child)
[2020] EWHC 3003 (Fam), [2021] 2 FLR 88.
[2016] EWHC 2859 (Fam), [2017] 4 WLR 1.
[2000] Ch 662, [2000] WLR 929.
Of those responding to Consultation Question 42, 67% were in favour, 19% were opposed, and 14%
expressed other views.
See para 10.9 above.
Department of Health, Mental Health Act 1983: Code of Practice (2015) para 19.36.
S Munoz, “Sucking Success out of Minor Social Media Influencers: A Call for Testamentary Capacity Rights
in Texas” (2021) 14(1) Estate Planning and Community Property Law Journal 337, 340.
N M Banta, “Minors and Digital Asset Succession” (2019) 104(4) Iowa Law Review 1699, 1702.
The final sub-project of the work on burial, cremation and new funerary methods will consider whether a
person should be able to put in place binding decisions about what happens to their body after their death:
see Rights and Obligations Relating to Funerary Methods, Funerals and Remains,
https://lawcom.gov.uk/project/rights-and-obligations-relating-to-funerary-methods-funerals-and-remains/.
In the matter of J, LC [2014] SASC 20.
See Consultation Paper, para 1.13; Banks v Goodfellow (1870) LR 5 QB 549 at 564.
Under the Inheritance (Provision for Family and Dependants) Act 1975, s 1(1)(e). See Re B (Deceased)
[2000] Ch 662, [2000] WLR 929. The concept of mutual dependence was again recognised by the courts in
Re A [2015] EWCOP 46, [2015] COPLR 397.
Administration of Estates Act 1925, s 46.
Mental Capacity Act 2005, ss 1(2), 2(5) and 18(2). See also Mental Capacity (1995) Law Com No 231, para
2.52.
Mental Capacity Act 2005, s 18(2). See Ch 3 for more detail on statutory wills.
Under the Senior Courts Act 1981, s 116, or the inherent jurisdiction of the High Court.
See Re S (A Child) (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam), [2019] Fam 177.
In a situation where the child had already validly, and so with the court’s authorisation, made and, in relation
to revival, revoked a will.
Disabled Children’s Social Care: Consultation Paper (2024) Law Commission Consultation Paper No 265,
paras 21.25 to 21.27.
Department of Health, Mental Health Act 1983: Code of Practice (2015) para 19.35.
Re S (A Child) (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam), [2019] Fam 177 (in relation
to the capacity of a child to consent to accommodation and adoption of her child); and S v CPW [2020]
EWHC 1238 (Fam) (in relation to an inward return order, where a Gillick competent child’s views should
normally be given effect).
See also Re S (A Child) (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam), [2019] Fam 177, at
[17]; D Burrows, “Capacity to consent: mental capacity and understanding” [2018] Family Law 320, 323 and
324.
Department of Health, Mental Health Act 1983: Code of Practice (2015) paras 19.34 to 19.37.
(1870) LR 5 QB 549. In Ch 1, we recommend that the MCA test is adopted for testamentary capacity;
however, as we explain in that chapter, these three elements will be the matters that the testator must be
able to understand as the “information relevant to the decision” under s 3(1) of the Mental Capacity Act,
2005: see paras 2.100 and 2.101 above.
Building Families Through Surrogacy: A New Law Volume II: Full Report (2023) Law Com No 411, Scot Law
Com No 262, para 13.139, citing Re R (A Minor) (Wardship: Consent to Treatment) [1991] 3 WLR 592; Re E
(a minor) (wardship: medical treatment) [1993] 1 FLR 386, 391; D Archard and M Skivenes, “Balancing a
Child’s Best Interests and a Child’s Views” [2009] 17 International Journal of Children’s Rights 1; Re S (A
Child) (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam), [2019] Fam 177 at [62]; Re X (A
Child) (No 2) [2021] 4 WLR 11; E v Northern Care Alliance NHS Foundation Trust [2021] EWCA Civ 1888; A
Teaching Hospitals NHS Trust v DV (A Child) [2021] EWHC 1037 (Fam).
Family Procedure Rules 2010 (SI 2010 No 2955), rr 16.4, 16.6, and 16.23 to 16.26.
However, see para 11.69 below.
B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 201.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) paras
10-16 and 10-35.
B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 204, citing Lowe v Thomas (1854) 5 De GM & G
315, 43 ER 891. See also Re Rowland [1963] Ch 1, where the words “in the event of the decease of [my
wife] preceding or coinciding with my own” were determined not to apply to the testator’s and his wife’s
deaths in the same sailing accident, because it is likely their deaths were moments or minutes apart; as the
testator was slightly older than his wife, he was presumed to have died first: as discussed in R Kerridge
(assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) paras 10-38 and
10-39.
[1943] AC 399 at 408.
[2014] UKSC 2, [2015] AC 129 at [20]. Although Marley v Rawlings was decided on a rectification point, and
so Lord Neuberger’s comments on interpretation are technically obiter, the courts have approved his
approach in a number of cases: see eg Partington v Rossiter [2021] EWCA Civ 1564, [2022] Ch 43 and
Wales v Dixon [2020] EWHC 1979 (Ch), [2020] WTLR 1121. For the meaning of “obiter”, see the glossary.
[2014] UKSC 2, [2015] AC 129 at [19], citing Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989,
Bank of Credit and Commerce International SA (In Liquidation) v Ali (No 1) [2001] UKHL 8, [2002] 1 AC 251,
and Rainy Sky SA v Kookmin Bank [2011] UKSC 50, [2011] 1 WLR 2900.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 18-004.
See para 11.21 below.
[2014] UKSC 2, [2015] AC 129 at [23].
See eg Partington v Rossiter [2021] EWCA Civ 1564, [2022] Ch 43.
See eg Wales v Dixon [2020] EWHC 1979 (Ch), [2020] WTLR 1121.
Meaning that, if possible, the will should be construed as disposing of the testator’s entire estate: see eg
Barrett v Hammond [2020] EWHC 3585 (Ch), [2021] WTLR 51 and Partington v Rossiter [2021] EWCA Civ
1564, [2022] Ch 43.
See eg Jeffreys v Scrutton [2020] EWHC 536 (Ch), [2020] WTLR 575.
Interpretive provisions found outside the Wills Act 1837 generally deal with the interpretation of words of
relationships, such as the meaning of “children” including illegitimate children: see B Sloan, Borkowski’s Law
of Succession (4th ed 2020) p 231 and following. See also Coulson v Paul [2024] EWHC 2021 (Ch) for an
example of the application of the interpretation rule in relation to adopted children in Adoption and Children
Act 2002, s 67(6).
Consultation Paper, para 174, citing H Beale, Chitty on Contracts (32nd ed 2015) ch 13.
Boyes v Cook (1880) 14 Ch D 53 at 56 by James LJ.
See eg Re Jeffery [1914] 1 Ch 375.
See eg Parsons v Parsons (1791) 30 ER 335.
Wales v Dixon [2020] EWHC 1979 (Ch), [2020] WTLR 1121.
See Chitty on Contracts (34th ed 2021) para 15-054.
As Lord Neuberger observed, the admissibility of direct evidence of the testator’s intentions is the key
difference between the purposive approach in the contractual context, where the court must ignore evidence
of parties’ intentions, and in the testamentary context: Marley v Rawlings [2014] UKSC 2, [2015] AC 129 at
[26].
See eg Gibbs v Davies (9 July 1992) (unreported).
See eg Slattery v Jagger [2015] EWHC 3976 (Ch), [2017] WTLR 321.
See eg Westland v Lilis [2003] EWHC 1669 (Ch).
Re Nodes [2021] EWHC 1057 (Ch), [2021] WTLR 507.
Pinnel v Anison [2005] EWHC 1421 (Ch), [2006] WTLR 1047, by Michael Briggs QC sitting as a Deputy
Judge of the High Court (as he then was).
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) paras 18-006
to 18-008.
There might be an argument that the courts have, or had, an inherent power to rectify wills: see B Hacker,
“What’s in a Will?” in B Hacker and C Mitchell (eds) Current Issues in Succession Law (2016) p 131, 153
and following, discussing the comments by Lord Neuberger in Marley v Rawlings [2014] UKSC 2, [2015] AC
129 at [28] to [30].
Nineteenth Report of the Law Reform Committee (1973) Cmnd 5301, para 11.
[2014] UKSC 2, [2015] AC 129 at [75], by Lord Neuberger.
See eg Wordingham v Royal Exchange Trust Co Ltd [1992] Ch 412.
See eg Barrett v Hammond [2020] EWHC 3585 (Ch), [2021] WTLR 51. Including a solicitor pasting a clause
in from their firm’s precedent: see Waite v Skilton [2024] EWHC 3153 at [53].
Joshi v Mahida [2013] EWHC 486 (Ch), [2013] WTLR 859.
Sprackling v Sprackling [2008] EWHC 2696 (Ch), [2009] WtLR 897.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
10-11.
Nineteenth Report of the Law Reform Committee (1973) Cmnd 5301, para 22.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 19-007.
See eg Re McKay (Deceased) [2023] EWHC 642 (Ch) at [59].
Consultation Paper, paras 9.20 to 9.27 and 9.37 to 9.42.
Consultation Paper, paras 9.29 to 9.35.
Consultation Paper, para 9.43.
Consultation Paper, Consultation Question 43.
Consultation Paper, Consultation Question 44.
Of those responding to Consultation Question 43, 88% agreed, 3% disagreed, and 9% expressed other
views.
Former Justice of the Supreme Court.
Of those responding to Consultation Question 44, 83% said they were not aware of any cases, and 17%
provided other comments.
In Northern Ireland, New Zealand and some Australian states.
Consultation Paper, Consultation Question 45.
Consultation Paper, paras 9.44 to 9.55.
Consultation Paper, Consultation Question 46.
Consultation Paper, paras 9.46 and 9.47.
Consultation Paper, Consultation Questions 47 and 48.
Of those responding to Consultation Question 45, 87% agreed, and the remainder were evenly split
between opposing it and expressing other views.
Of those responding to Consultation Question 47, 77% were in favour of repeal, 6% were opposed, and
17% provided other responses.
B Sloan, Borkowski’s Law of Succession (3rd ed 2017). See the most recent edition: (4th ed 2020).
Former barrister and one of the editors of Williams on Wills.
An incorporeal hereditament which is a right of patronage of a benefice, essentially the right to nominate or
appoint a rector or vicar to a benefice: see Jowitt’s Dictionary of English Law (6th ed 2023) “advowson”.
Of those responding to Consultation Question 48, 76% were in favour of repeal.
Former barrister and one of the editors of Williams on Wills.
A gift in remainder: eg “to A for life and then to B in fee simple”.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
10-81.
But are not limited to: see eg Wills Act 1837, ss 1, 3 and 10.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 22-013.
A fee tail is an estate in land which lasts so long as the person who owns it (called the tenant in tail) or any
of their direct, lineal descendants survive. It passes automatically on the death of the tenant in tail to their
eldest direct descendant, and so on. If at any point the original tenant in tail’s direct descendants fail to have
their own direct descendant, the estate ends. See the glossary for a further explanation of a “fee tail”.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 32-161; L
Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute 7 Will IV & 1 Vict c 26 for the
Amendment of the Laws with Respect to Wills (1838) pp 318 to 320.
L Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute 7 Will IV & 1 Vict c 26 for the
Amendment of the Laws with Respect to Wills (1838) p 317.
Trusts of Land and Appointment of Trustees Act 1996, sch 1, para 5; A Learmonth, J Clarke, K Shuman, C
Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 32-148. And as explained by Christopher Jessel
in his consultation response.
L Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute 7 Will IV & 1 Vict c 26 for the
Amendment of the Laws with Respect to Wills (1838) pp 322 to 329. See also Re Thomas [1921] 1 Ch 306.
The rule against perpetuities sets a time limit (known as the perpetuity period) within which future dealings
with property must occur: it is now governed by the Perpetuities and Accumulations Act 2009, which in
section 5 provides that the perpetuity period is 125 years.
See eg Victoria’s Wills Act 1997, s 44(3).
National Committee for Uniform Succession Laws, Uniform Succession Laws: The Laws of Wills (Report 85
1998) para 8-023.
L Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute 7 Will IV & 1 Vict c 26 for the
Amendment of the Laws with Respect to Wills (1838) pp 322 to 329.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 27-007; H
Sugden, An Essay on the Law of Wills as altered by 1 Victoria c 26 (1837) p 51 and following.
See also A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para
27-008.
[1974] 1 WLR 1552, [1974] 3 All ER 323.
See Ch 12 for more detail on the operation of ademption.
See A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) paras 21-
012 and 26-036.
Above, paras 28-001 and 28-001. Historically the words to indicate the beneficiary of a gift were called
“words of purchase”.
Above, para 26-036. See also L Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute
7 Will IV & 1 Vict c 26 for the Amendment of the Laws with Respect to Wills (1838) p 284.
M Dixon, J Bignell, and N Hopkins, Megarry & Wade: The Law of Real Property (10th ed 2024) para 13-062
and n 315, citing Wright v Hall (1742) 92 ER 810, Fortescue 182. See the glossary for the meaning of “heir
at law”.
Usually a “him”, given the preference for (legitimate) males: see Halsbury’s Laws of England, Wills and
Intestacy (2021) Vol 1, paras 547 (Rule 2: priority of males), 548 (Rule 3: coparceners) and 549 (Rule 4:
lineal descendants).
See Wright v Hall (1742) Fortescue 182, 92 ER 810.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 26-036.
See Wills Act 1837, s 27, which we discuss at para 11.102 and following below. See the glossary for the
meaning of “power of appointment”, and special, general or hybrid powers of appointment.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 26-040.
M Dixon, J Bignell, and N Hopkins, Megarry and Wade: The Law of Real Property (10th ed 2024) para A-
016; L Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute 7 Will IV & 1 Vict c 26 for
the Amendment of the Laws with Respect to Wills (1838) pp 236 to 237.
Section 60 of the Law of Property Act 1925 later addressed this issue for lifetime dispositions: see M Dixon,
J Bignell, and N Hopkins, Megarry and Wade: The Law of Real Property (10th ed 2024) para A-006; and
Wolstenholme and Cherry’s Conveyancing Statutes (13th ed 1972) Vol 1, p 134.
L Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute 7 Will IV & 1 Vict c 26 for the
Amendment of the Laws with Respect to Wills (1838) p 254.
(1593) 8 Co Rep 96a, Cro Eliz 316, 78 ER 566.
See L Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute 7 Will IV & 1 Vict c 26 for
the Amendment of the Laws with Respect to Wills (1838) p 272.
H Sugden, An Essay on the Law of Wills as altered by 1 Victoria c 26 (1837) pp 120 to 122, citing Doe v
Simpson (1804) 5 East 162, 102 ER 1031; L Shelford, A Practical Treatise on the Law of Wills, as altered by
The Statute 7 Will IV & 1 Vict c 26 for the Amendment of the Laws with Respect to Wills (1838) p 274.
There are no longer advowsons in the sense of real property rights in relation to the Church in Wales: see
Welsh Church Act 1914, s 1.
L Shelford, A Practical Treatise on the Law of Wills, as altered by The Statute 7 Will IV & 1 Vict c 26 for the
Amendment of the Laws with Respect to Wills (1838) p 301.
Re Jacob [1907] 1 Ch 445, 449, as cited in R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The
Law of Succession (13th ed 2016) para 11-33.
An entail is another word for what used to be called a fee tail: see the glossary for the meaning of “fee tail”.
In para 1 of Sch 1 to the draft Bill.
Consultation Paper, para 9.48.
Consultation Paper, paras 9.49 to 9.52, referring to the Wills Bill 1997, cl 41, in the National Committee for
Uniform Succession Laws, Consolidated Report to the Standing Committee of Attorneys General on the Law
of Wills (Queensland Law Reform Commission MP 29 1997) p 41.
Consultation Paper, paras 9.53 to 9.54, citing the Uniform Law Commission, Uniform Probate Code, s 2-
605.
Consultation Paper, Consultation Question 49.
Approximately 30% of those responding to Consultation Question 49. 54% said there was no need for a new
provision, and 26% made other comments.
Section 24 provides that, with respect to the testator’s property, a will shall be construed to speak from the
death of the testator, unless a contrary intention appears.
An independent trust consultant.
[2014] UKSC 51, [2015] AC 157.
Royal Society v Robinson [2015] EWHC 3442 (Ch), [2017] WTLR 299, where “the UK” was interpreted to
include the Channel Islands and the Isle of Man.
Partington v Rossiter [2021] EWCA Civ 1564, [2022] Ch 43.
See also R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed
2016) para 10-82.
Doe d Winter v Perratt (1843) 6M & G 314.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 18-024.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
10-50.
[2015] EWHC 3172 (Ch), [2016] WTLR 273.
[2022] EWHC 2472 (Ch), [2023] 1 P & CR DG12 at [2]. The court did not appear to apply this principle in the
case of a badly drafted will, which the evidence suggested was “prepared by an apparently unqualified
person holding himself out as a will writer, perhaps for money”: see Tedford v Clarke [2025] EWHC 816 (Ch)
at [13], see eg [21] and [26].
See Lane v Lane [2024] EWHC 275 (Ch) at [21]; and Harmish Mehta and Daniel Burton, "Ademption of gifts
of partnership shares; executor removal" [2024] 3 Private Client Business 109, 113.
See R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016)
paras 14-37 and 14-38.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 28-002.
With respect to charities which have changed their names, se L King, K Biggs, P Gausden, and M Thomas,
A Practitioner’s Guide to Wills (5th ed 2023) para 5.7.8; and M Waterworth and G Bedworth, Rossdale:
Probate and the Administration of Estates (4th ed 2008) para 43-10; Re Bagshaw (Deceased) [1954] 1 WLR
238, [1954] 1 All ER 227.
Knipe v British Racing Drivers’ Motor Sport Charity [2020] EWHC 3295 (Ch), [2020] WTLR 1333.
Burnard v Burnard [2014] EWHC 340 (Ch).
Parkinson v Fawdon [2009] EWHC 1953 (Ch), [2010] WTLR 79.
[2021] EWCA Civ 1564, [2022] Ch 43 at [37] by Green LJ.
[2001] WTLR 1375, The Times, 31 October 1995, as cited in A Learmonth, J Clarke, K Shuman, C Ford and
T Fletcher, Theobald on Wills (19th ed 2021) p 17-006.
[2001] WTLR 1375, as cited in B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 240.
Sheila Campbell, retired solicitor.
London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 10-004.
[1972] Ch 526 at 539 by Mr Justice Brightman as he then was.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 10-006.
See eg Macintyre v Oliver [2018] EWHC 3094 (Ch), [2019] WTLR 215; and Dryden v Young [2024] EWHC
1095 (Ch).
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 25-057.
As amended by the Charities Act 2022, s 33(4), based on our recommendation in Technical Issues in
Charity Law (2017) Law Com No 375, Recommendation 34.
Technical Issues in Charity Law (2017) Law Com No 375, para 11.88.
Re Servers of the Blind League [1960] 1 WLR 564.
See our considerations in relation to gifts to charitable bodies in Technical Issues in Charity Law (2017) Law
Com No 375, paras 11.89 and 11.93.
Unlike the register of charities mergers under the Charities Act 2011, ss 305 and 306.
Which includes limited liability partnerships, which are bodies incorporated under the Limited Liability
Partnerships Act 2006, s 1(2); co-operative/community benefit societies, which are registered under the Co-
operative and Community Benefit Societies Act 2014; friendly societies incorporated under the Friendly
Societies Act 1992; and corporations sole.
L King, K Biggs, P Gausden, and M Thomas, A Practitioner’s Guide to Wills (5th ed 2023) para 6.13.
Or grandchild or great-grandchild, and so on.
It also modifies the class closing rules to class gifts to children or other descendants.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
10-82.
“The conflict between the sections in the Wills Act and s 21 is more apparent than real” in the view of R
Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para 10-
82.
Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, at [46] by Lord Hoffman.
Consultation Paper, paras 9.57 and 9.58, citing Wills Act 1936 (South Australia), s 25AA.
Consultation Paper, paras 9.59 to 9.61.
Consultation Paper, Consultation Question 50.
Of those responding to Consultation Question 50, 57% supported expansion, 26% opposed expansion, and
17% expressed other views.
Marley v Rawlings [2014] UKSC 2, [2015] AC 129.
B Sloan, Borkowski’s Law of Succession (3rd ed 2017) p 99. See the most recent edition: (4th ed 2020) p
110.
[2012] EWHC B30 (Ch), [2013] WTLR 507. The issue related to whether the distribution of the residue of the
estate should be between all 15 named relatives and four charities (all of whom received gifts of money), or
just amongst the 15 named relatives. See para 11.192 below.
[1999] 1 WLR 727. This was an action for professional negligence against a solicitor in respect of the
drafting of a will. The Court of Appeal held that a disappointed beneficiary is expected to bring proceedings
for rectification to mitigate their loss before bringing proceedings for negligence.
[1995] 2 AC 207, [1995] 2 WLR 187.
Former barrister and one of the editors of Williams on Wills.
See the glossary for the meaning of “inter vivos”.
[2007] EWCA Civ 412, [2007] WTLR 941.
[2007] EWCA Civ 412, [2007] WTLR 941.
Re Butlin’s Settlement Trusts [1976] Ch 251. See para 11.212 below.
From when the grant of probate or letters of administration are first taken out, except with the permission of
the court: Administration of Justice Act 1982, s 20(2). There is no time limit for an interpretation claim: see A
Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 19-009.
[2024] EWHC 3153 at [53]
[2015] EWHC 946 (Ch), [2015] WTLR 1245.
[2013] EWHC B30 (Ch), [2013] WTLR 507.
Nineteenth Report of the Law Reform Committee (Interpretation of Wills) (1973) Cmnd 5301, para 23.
It appears that interpretation was not argued in Kell v Jones [2013] EWHC B30 (Ch), [2013] WTLR 507. It
might be that section 21(1)(b) or (c) of the Administration of Justice Act 1982 could have been thought to
apply in order for direct extrinsic evidence of the testator’s intention to be admitted as an aid to
interpretation: (b) on the basis that “surviving” could have two meanings, one applying to living beings and
one not; and (c) on the basis that including the charities as residuary beneficiaries was a departure from the
testator’s previous will. However, the judge in the case suggested that the interpretation was clear that it did
not exclude beneficiaries who are not “mortal”: at [23].
[1985] 1 WLR 905, 911, cited with approval by Neuberger LJ in Marley v Rawlings [2014] UKSC 2, [2015]
AC 129 at [42]. See B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 236.
[2015] EWHC 946 (Ch), [2015] WTLR 1245 at [52]. For the meaning of “obiter”, see the glossary.
Marley v Rawlings [2014] UKSC 2, [2015] AC 129 at [75].
See R Kerridge, “When a husband executes his wife’s will” [2012] The Conveyancer and Property Lawyer
505.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
10-13.
Dr Sloan referred to B Sloan, Borkowski’s Law of Succession (3rd ed 2017) pp 97 and 99. See also the
most recent edition: (4th ed 2020) p 109.
[2014] EWHC 547 (Ch), [2014] WTLR 745.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
10-13.
Kevin Shannon, “Reluctance and regret over will rectification” (2013) 157(5) Solicitors Journal 9.
Elizabeth Drummond, “Whose will is it anyway? Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213”
[2014] 4 Conveyancer and Property Lawyer 357, 361.
Marley v Rawlings [2014] UKSC 2, [2015] AC 129 at [80].
Consultation Paper, paras 9.60 to 9.61.
K Shannon, “Rewarding the negligent and punishing the diligent” (2012) 156(48) Solicitors Journal 12.
Walker v Geo H Medlicott & Son [1999] 1 All ER 685.
K Shannon, “Rewarding the negligent and punishing the diligent” (2012) 156(48) Solicitors Journal 12, 13.
[2014] UKSC 2, [2015] AC 129 at [40].
Re Segelman (deceased) [1996] Ch 171, 184 by Chadwick J (as he then was).
See eg Wills Act 1997 (Victoria), s 31(1), which permits rectification if a will fails to carry out the testator’s
intentions because of a clerical error, or because the will “does not give effect to the testator’s instructions”
and Wills and Succession Act 2010 (Alberta), s 39(1), which permits rectification if there is “clear and
convincing evidence, that the will does not reflect the testator’s intentions” because of an accidental mistake
or “a misunderstanding of, or failure to give effect to, the testator’s instructions”.
See eg Univar UK Ltd v Smith [2020] EWHC 1596 (Ch), [2020] Pens LR 23.
Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101.
FSHC Group Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 1361, [2020] Ch 365.
Thomas Bates & Sons v Wyndhams Ltd [1981] 1 WLR 505.
Re Butlin’s Settlement Trusts [1976] Ch 251. See also eg Giles v Royal National Institute for the Blind [2014]
EWHC 1373 (Ch), [2014] STC 1631 (granting rectification where a solicitor intended to frame a gift in a deed
of variation so that it was exempt from inheritance tax, but failed to do so).
See Racal Group Services Ltd v Ashmore [1995] STC 1151 (in the context of a deed) and Allnutt v Wilding
[2007] EWCA Civ 412, [2007] BTC 8003 (in the context of a trust settlement).
See eg Banks v Ripley [1940] Ch 719 (a marriage settlement).
J McGhee and S Elliott, Snell’s Equity (34th ed 2020) para 16-023, citing Van der Linde v Van der Linde
[1947] Ch 306.
See Allnutt v Wilding [2007] EWCA Civ 412, [2007] BTC 8003 (in the context of settlements) and FSHC
Group Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 1361, [2020] Ch 365 (in the context of contracts).
Allnut v Wilding [2007] EWCA Civ 412, [2007] BTC 8003 at [11].
[2007] EWCA Civ 412, [2007] BTC 8003.
[2014] EWHC 1373 (Ch) at [34].
Administration of Justice Act 1982, s 20(2).
Currently, under r 55 of the Non-Contentious Probate Rules 1987 (SI 1987 No 2024), a district judge of the
Principal Registry of the Family Division or a district probate registrar can make an order for rectification
where a probate action has not yet been commenced and the application for rectification is unopposed. We
think this should continue to be the case, but the Non-Contentious Probate Rules 1987 will need to be
amended to as a consequence of the draft Bill for a new Wills Act.
See eg Re Benham’s Will Trusts [1995] STC 210; Reading v Reading [2015] EWHC 946 (Ch), [2015] WTLR
1245; and Coulson v Paul [2024] EWHC 2021 (Ch).
Brooke v Purton [2014] EWHC 547 (Ch), [2014] WTLR 745 at [15].
See eg Jump v Lister [2016] EWHC 2160 (Ch), [2017] WTLR 61.
See para 11.119 above.
Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101 at [25].
Marley v Rawlings [2014] UKSC 2, [2015] AC 129 at [39], citing the Honourable Mr Justice K Lewison, The
Interpretation of Contracts (5th ed 2011) para 9.03.
Marley v Rawlings [2014] UKSC 2, [2015] AC 129 at [41].
D Hodge KC, “The correction of mirror wills: interpretation versus rectification” [2017] 1 The Conveyancer
and Property Lawyer 45.
[2012] EWCA Civ 736, [2013] Ch 305.
Administration of Justice Act 1982, s 20(2) and (3); Marley v Rawlings [2014] UKSC 2, [2015] AC 129, at
[40].
Consultation Paper, para 9.64.
Consultation Paper, para 9.65.
Marley v Rawlings [2014] UKSC 2, [2015] AC 129, at [65].
B Hacker, “What’s in a Will?” in Birke Hacker and Charles Mitchell (eds) Current Issues in Succession Law
(1st ed 2016) p 153.
See A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 41-
001.
See B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 264.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 38-008.
See Ch 7.
However, general gifts are those most vulnerable to abatement: see para 12.17 below.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 21-002.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 21-001; B
Sloan, Borkowski’s Law of Succession (4th ed 2020) p 246.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 21-008.
Ademption does not occur where the subject matter of a gift was disposed of without authority. See eg
Basan v Brandon (1836) 8 Sim 171.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 41-005.
B Sloan, Borkowski’s Law of Succession (4th ed 2020) pp 247 to 248.
See F Barlow, R Wallington, S Meadway, J MacDougald and J Kirby, Williams on Wills (11th ed 2021) para
41.4; and Lane v Lane [2024] EWHC 275 (Ch) at [21].
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 41-006.
See R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016)
para 14-27; and B Sloan, Borkowski’s Law of Succession (4th ed 2020) para 8.2.6.
See eg Re Aspinall [2017] EWHC 454, [2017] WTLR 447 at [35].
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 41-001.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
14-36. However, such a gift or any specific residuary gift, such as “all of my land”, would still fail if the
testator did not own any property which matched the description in the will at the time of their death: see Re
Slater [1907] 1 Ch 665 at 670.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 41-006.
See eg Re Lewis’ Will Trust [1937] Ch 118.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
14-50.
The Administration of Estates Act 1925, s 34(3) and Sch 1 determines how the testator’s estate is to pay
their debts, liabilities and expenses. Once all debts, liabilities and expenses are paid, the estate can be
distributed under the will.
If the designated fund is spent, the demonstrative gift will abate with general gifts.
B Sloan, Borkowski’s Law of Succession (4th ed 2020) paras 8.1.2.1 and 8.1.2.2; and A Learmonth, J
Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 38-008 and following;
Administration of Estates Act 1925, Sch 1.
B Sloan, Borkowski’s Law of Succession (4th ed 2020) paras 8.1.2.1 and 8.1.2.2.
Consultation Paper, para 10.10.
Uniform Probate Code, s 2.606(a)(6). The Uniform Probate Code is 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.
Consultation Paper, paras 10.18 to 10.21. Although we did not ask a question along these lines, some
consultees nevertheless disagreed, thinking that adopting an intentional approach to ademption was the
best way forward.
Mental Capacity Act 2005, para 8 of Sch 2.
Mental Capacity Act 2005, para 8(5) of Sch 2. See Consultation Paper, para 10.26.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 41-026.
Mental Capacity Act 2005, para 8(6) of Sch 2.
Or attorneys, acting under enduring powers of attorney, the predecessor of LPAs, under the Enduring Power
of Attorney Act 1985.
Mental Capacity Act 2005, s 9(1)(b).
Consultation Paper, para 10.27. However, if the donee makes an application for authorisation of the
disposal to the Court of Protection under MCA 2005, s 18(1)(b), and the court grants the order, the gift will
not adeem under Sch 2, para 8: see Master D Lush and D Rees, Heywood & Massey: Court of Protection
Practice (looseleaf 2023) para 10-007.
[2005] EWHC 3479 (Ch), [2006] WTLR 169.
The predecessor of LPAs, under the Enduring Power of Attorney Act 1985.
Under the Mental Health Act 1983, s 101(1), in the predecessor provision to Mental Capacity Act 2005, para
8 of Sch 2.
[2005] EWHC 3479 (Ch), [2006] WTLR 1693 at [30].
Consultation Paper, para 10.30.
Consultation Paper, para 10.31.
Consultation Paper, para 10.32, citing Law Society Practice Note “Access and disclosure of an incapacitated
person’s will” (1 March 2017). The practice note also made clear that a solicitor can refuse to provide the will
to an attorney or deputy where the solicitor has reasonable cause for concern that the attorney or deputy
may act in a way that is not in the best interests of the person for whom he or she acts (and therefore in
breach of statutory and fiduciary duties).
Banks v National Westminster Bank Plc [2005] EWHC 3479 (Ch), [2006] WTLR 1693 at [30]. See
Consultation Paper, para 10.36.
Consultation Paper, para 10.37. See Alberta Law Reform Institute, Wills and the Legal Effects of Changed
Circumstances (Final Report No 98, August 2010) p 16; and Victorian Law Reform Commission, Succession
Laws (2013) pp 40 to 44.
Mental Capacity Act 2005, ss 11 and 20(1). Donees of personal welfare LPAs can only act when the person
lacks capacity (or the donee reasonably believes the person lacks capacity): s 11(7)(a).
Consultation Paper, para 10.39.
Consultation Paper, para 10.41.
Consultation Paper, Consultation Question 51.
Of those responding to Consultation Question 51, 73% agreed, 17% disagreed, and 10% expressed other
views.
Former Master and Senior Judge of the Court of Protection.
Master D Lush and D Rees, Heywood & Massey: Court of Protection Practice (looseleaf 2023) para 26-024.
We had noted in the Consultation Paper that this was one of the circumstances in which a statutory will is
often applied for: Consultation Paper, para 3.6.
Consultation Paper, para 10.42.
Law Society, Access and disclosure of an incapacitated person’s will (October 2023).
Solicitors’ Regulation Authority, Guidance: Access to and disclosure of an incapacitated person’s will
(November 2019), https://www.sra.org.uk/solicitors/guidance/incapacitated-persons/ (last visited 31 March
2025).
Such as in the guidance at https://www.gov.uk/lasting-power-attorney-duties (last visited 31 March 2025).
See para 12.33 above. Consultation Paper, para 10.41.
Contracts for sale are specifically enforceable by or against the executors: Hoddel v Pugh (1864) 55 ER
458. And option to purchase will generally also bind them: Kennewell v Dye [1949] Ch 517. It will not bind
the executors if the option contract is personal only to the testator, or the option as interpreted is not
intended to devolve to their executors. It will be rare for an option to be interpreted in this way; for instance,
the fact that an option fails to refer to executors is insufficient for this interpretation to hold weight: Barnsley’s
Land Options (7th ed 2021) para 3-026.
See eg Watts v Watts (1873-74) LR 17 Eq 217.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
14-44. See eg the explanation of the “vendor purchaser constructive trust” in LA Micro Group Inc v LA Micro
Group (UK) Ltd [2024] UKSC 42 at [24] to [27].
Farrar v Earl of Winterton (1842) 49 ER 476. See R Kerridge (assisted by A H R Brierley), Parry and
Kerridge: The Law of Succession (13th ed 2016) para 14-44.
Lawes v Bennett (1785) 29 ER 1111.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
14-46.
Barnsley’s Land Options (7th ed 2021) para 3-028.
Consultation Paper, paras 10.45 and 10.47.
Ontario, Alberta, Saskatchewan, New Brunswick, the Northwest Territories and Nunavut: see Alberta Law
Reform Institute, Wills and the Legal Effects of Changed Circumstances, Final Report No 98 (August 2010)
pp 158 to 161.
Uniform Probate Code, s 2-606(a)(1).
Consultation Paper, paras 10.49 and 10.50.
Consultation Paper, para 10.52.
Consultation Paper, Consultation Question 52.
Of those responding to Consultation Question 52, 75% agreed, 15% disagreed, and 10% expressed other
views.
Referring to eg the Administration of Estates Act 1925, s 35.
Under Administration of Estates Act 1925, s 35.
For the meaning of “ex gratia”, see the glossary.
See para 12.101 below.
[2017] EWHC 454, [2017] WTLR 447.
For the meaning of “obiter”, see the glossary.
[2017] EWHC 454, [2017] WTLR 447 at [62] to [64]. See A Learmonth, J Clarke, K Shuman, C Ford and T
Fletcher, Theobald on Wills (19th ed 2021) para 41-011.
Not that ademption does not arise in relation to rights of pre-emption: see Pennington v Waine (No 2) [2003]
WTLR 1011, [2003] CLY 4121.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 27-035.
See eg Re Aspinall [2017] EWHC 454, [2017] WTLR 447.
See eg by operation of the Coal Act 1938, Re Galway’s Trusts [1950] Ch 1 at 9.
See Re Calow [1928] Ch 710 (in the context of a contract for sale) and Drant v Vause (1842) 62 ER 1026 (in
the context of an option to purchase).
Re Pyle [1895] 1 Ch 724.
Emuss v Smith (1848) 64 ER 323. This stands in contrast to when a contract for sale is entered: as we note
at para 12.15 above, a gift is adeemed by the entering into the contract, so cannot be saved from ademption
by a later executed codicil.
M Dixon, J Bignell, and N Hopkins, Megarry & Wade: The Law of Real Property (10th ed 2024) para 14-051;
J McGhee and S Elliott, Snell’s Equity (34th ed 2019) para 6-001; M Dixon, P Milne, S H Wheeler, D Cavill,
and D W Rees, Ruoff and Roper on the Law and Practice of Registered Conveyancing (looseleaf ed 2023)
para 37.003 n 19.
Re Cary-Elwes’ Contract [1906] 2 Ch 143 at 149 by Swinfen Eady J.
Lawes v Bennett (1785) 29 ER 1111. The same applies in relation to a conditional contract: Snell’s Equity
(34th ed 2019) para 6-008; Re Sweeting (Deceased) [1988] 1 All ER 1016.
See para 12.66 above. See F Barlow, R Wallington, S Meadway, J MacDougald and J Kirby, Williams on
Wills (11th ed 2021) para 41.20. It also applies to conditional contracts for sale: see A Learmonth, J Clarke,
K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 27-037.
Although this is not especially clear.
See eg R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016)
para 14-46; B Sloan, Borkowski’s Law of Succession (4th ed 2020) para 8.2.6.3; A Learmonth, J Clarke, K
Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 27-036; F Barlow, R Wallington, S
Meadway, J MacDougald and J Kirby, Williams on Wills (11th ed 2021) para 41.20; M Dray, A Rosenthal, C
Groves, and A Dolder, Barnsley’s Land Options (7th ed 2021) para 3-027. See also Re Carrington [1932] 1
Ch 1.
As noted in Theobald on Wills, the testator no longer has an “estate or interest” in the land under the Wills
Act 1837: A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para
41-004. See also J McGhee and S Elliott, Snell’s Equity (34th ed 2019) para 35-007 n 18.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 27-034.
See F Barlow, R Wallington, S Meadway, J MacDougald and J Kirby, Williams on Wills (11th ed 2021) para
41.20.
That is, where the option is exercised. If the option is never exercised, there will be no conversion that
adeems the gift.
Administration of Estates Act 1925, s 35. See eg Re Cockcroft (1883) 24 Ch D 94; and Re Birmingham
[1959] Ch 523.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 27-039.
See F Barlow, R Wallington, S Meadway, J MacDougald and J Kirby, Williams on Wills (11th ed 2021) para
41.1 and 44.1; Re Corbett [1903] 2 Ch 326. This operation of satisfaction is also, confusingly, sometimes
called ademption, but it is a different type of ademption than the focus on this chapter.
Benyon v Benyon (1810) 34 ER 14; Re Pollock (1885) 28 Ch D 552; Re Aynsley [1914] 2 Ch 422. See also
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
13-08; B Sloan, Borkowski’s Law of Succession (4th ed 2020) para 8.2.8.2.
See para 12.13 above.
See para 12.8 above. A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed
2021) para 41-005.
Consultation Paper, para 10.59.
Consultation Paper, para 10.60. See Uniform Law Commission, Uniform Probate Code, s 2-605.
Consultation Paper, Consultation Question 53.
Of those responding to Consultation Question 53, 83% agreed, 8% disagreed and 9% expressed other
views.
Anthony Collins Solicitors LLP and Hugh James.
Re Clifford [1912] 1 Ch 29.
Re Jameson [1908] 2 Ch 111.
Oakes v Oakes (1852) 9 Hare 666.
Partridge v Partridge (1736) 25 ER 749.
Re Leeming [1912] 1 Ch 828.
Re Slater [1907] 1 Ch 665.
Re Slater [1907] 1 Ch 665, 672, by Cozens-Hardy MR.
Re Slater [1907] 1 Ch 665.
See para 12.8 above.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
14-50, citing Durrant v Friend (1852) 64 ER 1145 and Re Mercer [1944] 1 All ER 759.
Consultation Paper, para 10.62.
Consultation Paper, Consultation Question 54.
Consultation Paper, para 10.63.
Of those responding to Consultation Question 54, 66% agreed, 20% disagreed, and 14% expressed other
views.
STEP and Paul Saunders, independent trust consultant, also raised the point about theft of the property
simultaneous with death in response to Consultation Question 55.
Former barrister and one of the editors of Williams on Wills.
Administration of Estates Act 1925, s 25.
See A Learmonth, C Ford and J Evans-Gordon, Williams, Mortimer and Sunnucks on Executors,
Administrators and Probate (22nd ed 2023) paras 48-04, 48-11, 48-13 and 48-14; and L Tucker, N Le
Poidevin (KC) and Master Brightwell, Lewin on Trusts (20th ed 2020) para 34-074.
Consultation Paper, Consultation Question 55.
Durrant v Friend (1852) 64 ER 1145. See also Re Mercer [1944] 1 All ER 759.
For example, Basan v Brandon (1836) 59 ER 68.
Jenkins v Jones (1866) LR 2 Eq 323.
Re Sikes [1927] 1 Ch 364. See also Re Gibson (1866) LR 2 Eq 669, cited in R Kerridge (assisted by A H R
Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para 12-10.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 27-003.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
12-05.
Castle v Fox (1870-71) LR 11 Eq 542, as cited in A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher,
Theobald on Wills (19th ed 2021) para 27-003. For the meaning of “obiter”, see the glossary.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para
12-11.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 27-003.
Potentially, a claim for rectification may also be made where, due to an error, the will failed to reflect the
testator’s intentions: Administration of Justice Act 1982, s 20.
Consultation Paper, para 10.65.
Consultation Paper, paras 10.65 to 10.66.
Consultation Paper, paras 10.69 to 10.71.
Consultation Paper, Consultation Question 56.
Consultation Paper, paras 10.72.
Consultation Paper, paras 10.73 to 10.74; Consultation Question 57.
However, a testamentary gift of land made when the testator owned only a charge over the land may be
interpreted to pass the charge and debt, on the basis of construction of the will as a whole: see eg Pierce v
Barton [2023] EWHC 3016 (Ch). See also Ch 11.
Wills Act 1837, ss 18, 18B and 20.
On the condition of a matter being true or on an event occurring. See A Learmonth, J Clarke, K Shuman, C
Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 7-061. See also para 13.43 below.
In the Goods of Savage (1870) LR 2 P & D 78. Although where there are duplicates of one will, destruction
of only one might be sufficient if coupled with intention to revoke: see A Learmonth, J Clarke, K Shuman, C
Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 7-047.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) paras 7-045 to
7-047, citing among others Doe v Harris (1837) 112 ER 79, 6 Ad & El 209; Hobbs v Knight (1838) 163 ER
267, 1 Curt 769 at 778; Stephens v Taprell (1840) 163 ER 473, 2 Curt 459 at 465; and Cheese v Lovejoy
(1877) 2 PD 251 at 253.
Consultation Paper, paras 11.23 and 11.24. See A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher,
Theobald on Wills (19th ed 2021) paras 7-045 to 7-047.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 7-052,
quoting Clarke v Scripps (1852) 163 ER 1414. See Elms v Elms (1858) 1 Sw & Tr 155; Re Kennett’s Goods
(1863) 2 New Rep 461; and Re Eeles’ Goods (1862) 2 Sw & Tr 600.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 7-052.
The damage will also be presumed to have been done by the testator.
See A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) paras 7-
057 and 7-058; B Sloan, Borkowski’s Law of Succession (4th ed 2020) pp 183 to 184.
Consultation Paper, paras 11.31 and 11.32.
Consultation Paper, paras 11.33 and 11.34.
Consultation Paper, Consultation Question 58.
Consultation Paper, paras 11.35 and 11.36.
Of those responding to Consultation Question 58, 80% agreed that reform is not required, 11% disagreed,
and 9% expressed other views.
See Almond v Goff [2021] EWHC 1703 (Ch); and Re Sangha (Deceased) [2023] EWCA Civ 660.
Equiom (Isle of Man) Ltd v Verlarde [2022] EWHC 11 (Ch).
See R S Smith, “When does a purported exercise of a power of appointment impliedly revoke a previous
revocable exercise of the power?” (2022) 28(8) Trusts and Trustees 751.
See Re Moore (Deceased) [2019] EWHC 54 (Ch); Burgess v Penny [2019] EWHC 1517 (Ch), 2019 All ER
(D) 167 (Jun); Cooper v Champan [2022] EWHC 1000 (Ch); Jones v Tracey [2023] EWHC 2242 (Ch); Crew
v Oakley [2024] EWHC 2847 (Ch); and Packer v Packer [2025] EWHC 461 (Ch). See also Morina v
Scherbakova [2023] EWHC 3253 (Ch) at [262] at following.
See also Rowe v Clarke [2005] EWHC 3068 (Ch); and Re Whelen (Deceased) [2015] EWHC 3301 (Ch).
Burgess v Penny [2019] EWHC 1517 (Ch), 2019 All ER (D) 167 (Jun).
Crew v Oakley [2024] EWHC 2847 (Ch). This case closely considered what is required for the testator to
direct another person to destroy a will for them. It also considered capacity to revoke and the burden of
proving capacity to revoke where the testator later lost capacity.
In Packer v Packer [2025] EWHC 461 (Ch), the court found that the presumption of revocation applied to a
lost will; however, the court also concluded that the will had not be validly executed in the first place, and
that the testator was aware that the will was not valid.
[2023] EWHC 2242 (Ch) at 26.
Jones v Tracey [2023] EWHC 2242 (Ch) at [21].
Jones v Tracey [2023] EWHC 2242 (Ch) at [23] to [25], citing Re Yule (Deceased) (1965) 109 Sol J 317,
Rowe v Clarke [2005] EWHC 3068 (Ch), and Re Whelen (Deceased) [2015] EWHC 3301 (Ch).
Jones v Tracey [2023] EWHC 2242 (Ch) at [26].
Packer v Packer [2025] EWHC 461 (Ch) at [107] by Hugh Sims KC, sitting as a Deputy Judge of the High
Court.
See eg A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 7-
061; R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016)
para 7-39; and Re Moore (Deceased) [2019] EWHC 54 (Ch) at [27].
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 7-061.
F H Newark, “Dependent Relative Revocation” (1955) 71 Law Quarterly Review 374.
See A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 1-
012: a conditional will is not entitled to probate if the condition is not fulfilled.
Draft Bill, cl 10, by virtue of all having to comply with the formality requirements outlined in the draft Bill in
Sch 2.
Divorce or dissolution of a civil partnership does not revoke a will; however, from the time of the divorce or
dissolution, the testator’s former spouse or civil partner is treated as having predeceased the testator for the
purpose of both the appointment of executors and trustees and the inheritance of property under the will:
Wills Act 1837, ss 18A and 18C.
The High Court recently held that there was no real prospect of success in the argument that the court has
the power to refuse to treat a marriage as valid on the grounds of public policy, to avoid the application of
this rule. The court said that “section 18 does not provide that it only takes effect if it is just for it to do so or if
there are no public policy reasons for it not to do so - though Parliament could have qualified its effect”:
Lattimer v Karamanoli [2023] EWHC 1524 (Ch) at [98].
Or specific dispositions in the will: see Wills Act 1837, ss 18(4) and 18(B)(4) to (6).
Wills Act 1837, ss 18(3) and 18B(3). A conversion from a civil partnership into a marriage will also not
revoke an existing will: s 18(5). See also Lattimer v Karamanoli [2023] EWHC 1524 (Ch) where an argument
was made that the will should be rectified so that it was expressly made in contemplation of the marriage
that took place the next day, so that the will could fall within the exception to the rule.
Wills Act 1837, ss 18(2) and 18B(2). See Consultation Paper, paras 11.44 to 11.46. See the glossary for the
meaning of “power of appointment”.
Administration of Estates Act 1925, s 46 and Sch 1A; Administration of Estates Act 1925 (Fixed Net Sum)
Order 2023 (SI 2023 No 758), art 2. If the deceased does not have a surviving spouse or civil partner, then
their estate goes to their children (or direct descendants); if they have no children (or direct descendants), it
goes to their parents; if they have no parents, then to their siblings, grandparents, or aunts and uncles, in
that order.
H Conway, The Law and the Dead (2016) pp 62 to 63; Non-Contentious Probate Rules 1987 (SI 1987 No
2024), r 22.
Consultation Paper, paras 11.47 to 11.53
Consultation Paper, Consultation Question 59. See Consultation Paper, para 11.55.
Consultation Paper, Consultation Question 60. See Consultation Paper, para 11.58.
On the capacity to marry, see Sheffield City Council v E (An Alleged Patient) [2004] EWHC 2808 (Fam),
[2005] Fam 32. The precise scope of the test for capacity to form a civil partnership is unclear but it is likely
to be similar to the test for capacity to marry: see WU v BU [2021] EWCOP 54, [2022] COPLR 46 at [47] to
[50] and [102].
A voidable marriage arises when one or both of the parties lacked the capacity to marry, when a party’s
consent was vitiated by duress or mistake, or by other factors affecting the parties or their relationship but
not their compliance with the formality requirements to enter a marriage: Matrimonial Causes Act 1973, s 12.
A voidable marriage revokes a will even if it is later voided by a decree of nullity: Matrimonial Causes Act
1973. Thes rules apply equally to civil partnerships: Civil Partnership Act 2004, ss 37(3) and 50.
See Consultation Paper, para 11.40; and Re Roberts (Deceased) [1978] 1 WLR 653. However, a void
marriage or civil partnership does not revoke a will. A void marriage (or civil partnership) arises where one or
both of the parties knowingly and wilfully failed to comply with certain key formalities: see Getting Married: A
Consultation Paper on Weddings Law (2020) Law Commission Consultation Paper No 247, para 10.17; and
Matrimonial Causes Act 1973, s 11.
Consultation Paper, paras 11.59 to 11.62.
Consultation Paper, Consultation Question 61. See Consultation Paper, para 11.62.
Consultation Paper, Consultation Question 59. Approximately 60% of consultees were in favour of retention
of the rule, and 20% in favour of abolition.
Consultation Paper, Consultation Question 60. Approximately 40% agreed, and 55% disagreed.
Consultation Paper, Consultation Question 61. Approximately 55% agreed.
See eg Editorial, “The Guardian view on predatory marriage: new safeguards are needed” (3 October 2021)
The Guardian, https://www.theguardian.com/commentisfree/2021/oct/03/the-guardian-view-on-predatory-
marriage-new-safeguards-are-needed (last visited 31 March 2025); Ministry of Justice: Forced Marriage
Written Answer (HC) 92940 (22 December 2021) (James Cartlidge).
Celebrating Marriage: A New Weddings Law (2022) Law Com No 408, para 1.73.
See eg D Gilbert, “In a bind: the legal future of wills and weddings” (November 2022),
https://www.lawsociety.org.uk/topics/private-client/in-a-bind-the-legal-future-of-wills-and-weddings (last
visited 31 March 2025); S Marriott, “Why is it so much easier to marry than to change a will?” (27 July 2023)
The Times.
See eg WU v BU [2021] EWCOP 54, [2022] COPLR 4.
Supplementary Consultation Paper, paras 3.33 to 3.35.
Supplementary Consultation Paper, para 3.32.
Supplementary Consultation Paper, paras 3.37 to 3.41.
Supplementary Consultation Paper, paras 3.2 and 3.40 to 3.41.
Specifically, their spouse or civil partner; their former spouse or civil partner; their cohabitant; their children;
person they treated as a child of the family; and a person they wholly or partly maintained: Inheritance
(Provision for Family and Dependents) Act 1975, s 1(1).
Inheritance (Provision for Family and Dependants) Act 1975, s 1(2).
See B Sloan, Borkowski’s Law of Succession (4th ed 2020) pp 324 and 331, respectively. See also Ilott v
Mitson [2017] UKSC 17, [2018] AC 545.
See B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 337. For a recent example of a successful
claim by an adult child, see Armstrong v Armstrong [2024] EWHC 2989 (Ch) (where the primary claim of
proprietary estoppel was also made out).
Supplementary Consultation Paper, para 3.47.
Supplementary Consultation Paper, Supplementary Consultation Question 5.
Supplementary Consultation Paper, Supplementary Consultation Question 6.
Including Re Davey [1980] 3 All ER 342, [1981] 1 WLR 164; Re BU [2021] EWCOP 54; and X v A [2021]
EWFC 118.
Esther Janalli-Brown (solicitor).
Of those responding to Supplementary Consultation Question 6, 25% were in favour of retaining the rule,
60% were in favour of abolishing it, and 15% made other comments or had not formed a settled view.
EJ (as attorney for DMM) v SD [2017] EWCOP 32, [2018] COPLR 137.
An argument also made by A Bainham, “Revoking a will by marriage or civil partnership: an argument for
abolition” [2025] 55 (Jan) Family Law 57, 63.
As we explained in the Supplementary Consultation Paper, before the Wills Act 1837, there was a rebuttable
presumption which only applied when a man both married and had a child: see para 3.37.
Professor Tina Cockburn (Australia), Professor Bridget Crawford (New York), Professor Margaret Hall
Canada), and Associate Professor Kelly Purser (Australia).
The forfeiture rule is a public policy principle that a person guilty of killing another cannot benefit from that
person’s estate, whether under their will or on intestacy: see A Learmonth KC, C Ford, and J Evans-Gordon,
Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (22nd ed 2023) para 64-02.
Under Anti-social Behaviour, Crime and Policing Act 2014, s 121.
A point discussed in A Bainham, “Revoking a will by marriage or civil partnership: an argument for abolition”
(2025) 55 (Jan) Family Law 57, 61.
Celebrating Marriage: A New Weddings Law (2022) Law Com No 408.
The final sub-project of the work on burial, cremation and new funerary methods will consider whether a
person should be able to put in place binding decisions about what happens to their body after their death.
An ability to do so could assist in cases where a predatory spouse has made decisions that the family know
or believe to be contrary to the wishes of the deceased: see Rights and Obligations Relating to Funerary
Methods, Funerals and Remains, https://lawcom.gov.uk/project/rights-and-obligations-relating-to-funerary-
methods-funerals-and-remains/. Currently, an application could be made under section 116 of the Senior
Courts Act 1981 to appoint another person as administrator.
This could in particular arise in relation to a testator who had cohabited and made a will in favour of their
cohabitant, after which the relationship ended, and testator married or formed a civil partnership with
another person. The ending of a cohabiting relationship will not impact a person’s will in the way that divorce
or dissolution does: from the time of a divorce or dissolution, the testator’s former spouse or civil partner is
treated as having predeceased the testator for the purpose of both the appointment of executors and
trustees and the inheritance of property under the will: Wills Act 1837, ss 18A and 18C.
For example, in British Columbia, claims for equitable provision can be made not just for what is adequate
provision but also taking into account of whether the testator discharged their “moral duty” to the claimant,
with it being unnecessary for the claimant, including an adult child, to show financial need: Allison A Cartier,
“How Social Norms and Values Influence the Balance between Wills Variation Claimants and Testators” in S
Lenon and D Monk (eds), Inheritance Matters: Kingship, Property, Law (2023) 193, 195 to 199, citing the
Wills Estates and Succession Act 2009 (BC), s 60 and Price v Lychuk Estate [1987] CanLII 165 (BCCA).
See D Miller, “Elder Exploitation Through Predatory Marriage” (2023) 28(1) Canadian Journal of Family Law
11, 17 and 30; Kimberly A Whaley, “The Capacity to Marry and Predatory Marriages” (2022) Paper
presented to the Law Society of Ontario Estates and Trusts Summit 19 October 2022, 15,
https://welpartners.com/resources/WEL-LSO-The-Capacity-to-Marry-and-Predatory-Marriages.pdf (last
visited 31 March 2025).
In its 2017 consultation response, Which? told us about its October 2016 survey, which found that just over
a third of UK adults (37%) have a will. This increases with age (7% of 18- to 24-year-olds compared to 79%
of those aged over 65). Those with children are more likely to have a will (48%) than those who do not have
children (25%). Which? surveyed 2,095 UK adults aged 18 using an online panel provided by Populus. The
sample was weighted to be nationally representative. Fieldwork ran from 7 to 10 October 2016.
Or if it does, it might not be successful, as in Dean v Groves [2025] 3 WLUK 292.
Reflected in a deed of variation or family arrangement: see A Bainham, “Revoking a will by marriage or civil
partnership: an argument for abolition” [2025] 55 (Jan) Family Law 57, 63.
Langley v Qin (12 April 2024) County Court (unreported).
J McKean, “Paranoid Delusion, Undue Influence, and Predatory Marriage: Langley v Qin” (15 April 2024)
New Square Chambers, https://newsquarechambers.co.uk/wp-content/uploads/2024/04/NSC-TWE-Case-
Note-Langley-v-Qin-JMK-15.4.24.pdf (last visited 31 March 2025).
As explained by Dr Juliet Brook in her consultation response. See also J Brook, “Automatic Revocation of a
Will on Marriage - A Rule that is Past its Use-by Date?” [2024] 1 Private Client Business 20; and H Sugden,
An Essay on the Law of Wills as altered by 1 Victoria c 26 (1837) pp 203 to 204.
See Ch 11. However, as explained in Ch 12, a form of speculative intention about what most testators would
intend is the rationale for some rules of ademption.
Finance and Law for the Older Client (95th issue 2024) s H1.4.
See A Barlow, “Modern Marriage Myths: the Dichotomy Between Expectations of Legal Rationality and
Lived Law” in RC Akhtar, P Nash and R Probert (eds), Cohabitation and Religious Marriage: Status,
Similarities and Solutions (2020). Research from the British Social Attitudes Survey (carried out by The
National Centre for Social Research) in 2019 demonstrates that almost half of people in England and Wales
mistakenly believe that unmarried couples who live together have a common law marriage and enjoy the
same legal rights as married couples: J Curtice, E Clery, J Perry, M Phillips and N Rahim (eds), British
Social Attitudes: the 36th Report (2019) p 113.
Celebrating Marriage: A New Weddings Law (2022) Law Com No 408.
Anti-social Behaviour, Crime and Policing Act 2014, s 121.
Supplementary Consultation Paper, para 3.28.
Sheffield City Council v E (An Alleged Patient) [2004] EWHC 2808 (Fam), [2005] Fam 326 at [144]. It is
likely that the threshold for capacity to form a civil partnership is at a similarly low level: see WU v BU [2021]
EWCOP 54, [2022] COPLR 46 at [47] to [50] and [102].
That said, in WU v BU [2021] EWCOP 54, [2022] COPLR 46, the Court of Protection ordered an injunction
under its inherent jurisdiction, as well as a forced marriage or civil partnership protection order to prevent a
civil partnership from taking place. Although X, who had vascular dementia, had capacity, N was found to be
exercising coercive control over her.
As it currently is, under the Matrimonial Causes Act 1973, s 12, and the Civil Partnership Act, s 50.
If a marriage is void, then in the eyes of the law the couple were never married and there is no need to
obtain a divorce to bring the marriage to an end. Nor is there any need to obtain a decree of nullity.
See the Terms of Reference - Weddings Project, https://cloud-platform-
e218f50a4812967ba1215eaecede923f.s3.amazonaws.com/uploads/sites/30/2019/07/Terms-of-reference-
for-the-Law-Commission-review-of-weddings-FINAL.pdf.
See K A Whaley, “The Capacity to Marry and Predatory Marriages” (2022) Paper presented to the Law
Society of Ontario Estates and Trusts Summit 19 October 2022, 18 and following,
https://welpartners.com/resources/WEL-LSO-The-Capacity-to-Marry-and-Predatory-Marriages.pdf (last
visited 31 March 2025); and D Miller, “Elder Exploitation Through Predatory Marriage” (2023) 28(1)
Canadian Journal of Family Law 11. See eg Devore-Thompson v Poulain [2017] BCSC 1289 (British
Columbia Supreme Court), where the marriage was void so did not revoke the victim’s will.
As noted in D Miller, “Elder Exploitation Through Predatory Marriage” (2023) 28(1) Canadian Journal of
Family Law 11.
KA Whaley, “The Capacity to Marry and Predatory Marriages” (2022) Paper presented to the Law Society of
Ontario Estates and Trusts Summit 19 October 2022, 2, https://welpartners.com/resources/WEL-LSO-The-
Capacity-to-Marry-and-Predatory-Marriages.pdf (last visited 31 March 2025). See eg Banton v Banton
(1998) 165 DLR (4th) 176, 82 ACWS (3d) 400 (Ontario Superior Court of Justice).
See TG Sheppard, “Predatory Marriages”, Boyne Clarke LLP, https://boyneclarke.com/predatory-marriages/
(last visited 31 March 2025), referring to the case of Hunt v Worrod [2017] ONSC 7397 (Ontario Superior
Court of Justice).
In the Wills, Estates and Succession Act 2009 (BC), s 55, following the recommendations in BC Law
Institute, Succession: A Modern Legal Framework (BCLI Report No 45, June 2006).
In the Wills and Succession Act 2010 (Alberta), s 23(2).
In the Wills Act 1996, as amended by the Marriage Amendment Act 2020 (Saskatchewan).
Wills Act 2002 (Yukon), s 10(2)(a) and (3).
The Succession Law Reform Act 1990 (Ontario), as amended by the Accelerating Access to Justice Act
2021.
Including in Saskatchewan (see Saskatchewan Hansard, 5 November 2019, 6301; Saskatchewan Hansard,
2 March 2020, 652 to 654) and Ontario (see Ontario Hansard, 25 March 2021, vol A, 1600).
Manitoba Law Reform Commission, Reform of the Wills Act, the Law of Property Act, and the Beneficiary
Designation Act, Revisited (Final Report No 139, March 2020) p 23. The New Zealand Law Commission
also recommended in 2021 that the rule be abolished in New Zealand: New Zealand Law Commission,
Review of Succession Law: Rights to a person’s property on death (Report 145, 2021) Recommendation
135.
K A Whaley, “The Capacity to Marry and Predatory Marriages” (2022) Paper presented to the Law Society
of Ontario Estates and Trusts Summit 19 October 2022, 128, https://welpartners.com/resources/WEL-LSO-
The-Capacity-to-Marry-and-Predatory-Marriages.pdf (last visited 31 March 2025).
Consultation Paper, para 12.4.
B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 57. See also A Learmonth, J Clarke, K Shuman, C
Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 1-019.
See Consultation Paper, para 12.6, and R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The
Law of Succession (13th ed 2016) para 6-34, citing Charles v Fraser [2010] WTLR 1489 where a mutual
wills arrangement was made by two widowed sisters.
See Consultation Paper, para 12.7, citing Re Dale [1993] 4 All ER 129 where the second testator to die
received no benefit under the will of the first testator.
Walters v Olins [2007] EWHC 3060 (Ch), [2008] WTLR 339 at [41] and Olins v Walters [2008] EWCA Civ
782; [2009] Ch 212 at [23] and [44].
L Tucker, N Le Poidevin and Master Brightwell, Lewin on Trusts (20th ed 2020) para 4-051.
See Cleaver v Insley [1981] 1 WLR 939 p 945, by Nourse J; and St Clair v King [2022] EWHC 40 (Ch),
[2022] WTLR 703 at [119(ii)] by Cawson J. See eg in Re Oldham [1925] Ch 75 and Re Goodchild [1997] 3
All ER 63 there was insufficient evidence that the wills made in similar terms amounted to a mutual wills
arrangement.
See A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 1-
019.
Naidoo v Barton [2023] EWHC 500 (Ch), [2023] 1 WLR 2162, by Cadwallader J at [35], quoting Re Dale
[1994] Ch 31; Re Goodchild [1997] 3 All ER 63 pp 1224 and 1229, by Leggatt LJ that “there must be a
contract at law” as affirmed in Healey v Brown [2002] EWHC 1405 (Ch) at [21], [2002] WTLR 849.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 1-020.
Consideration has been found where the testators agree that the survivor shall be bound to make a new will
to dispose of the property according to the deceased’s wishes: Re Green [1951] Ch 148.
Naidoo v Barton [2023] EWHC 500 (Ch), [2023] 1 WLR 2162 at [35], by Cadwallader J.
L Tucker, N Le Poidevin and Master Brightwell, Lewin on Trusts (20th ed 2020) para 4-038.
B Sloan, Borkowski’s Law of Succession (4th ed 2020) p 58. In eg Charles v Fraser [2010] EWHC 2154
(Ch), 13 ITELR 455, evidence was permitted that two sisters had spoken freely about “the will”, indicating
that they had decided that the surviving sibling would have the other’s money for their care, and that it would
then be distributed between friends and family.
[2002] EWHC 1405 (Ch), [2002] WTLR 849, by David Donaldson KC, sitting as a Deputy Judge of the High
Court.
Healey v Brown [2002] EWHC 1405 (Ch) at [23], [2002] WTLR 849. See also Olins v Walters [2008] EWCA
Civ 782, [2009] Ch 212, affirming [2007] EWHC 3060 (Ch), [2008] WTLR 339: the first instance court
decided that a mutual will agreement to dispose of specific property (rather than, for example, property that
happens to be left in the residuary estate) must comply with the Law of Property (Miscellaneous Provisions)
Act 1989 s 2.
Law of Property (Miscellaneous Provisions) Act 1989 s 2. In Healey v Brown [2002] EWHC 1405 (Ch),
[2002] WTLR 849, the agreement that the parties were bound by the terms of the mutual wills, including for
the disposition of land, was stated on the face of the mutual wills. The court held that the agreement did not
satisfy s 2 as the mutual wills were not a single document signed by both parties to the agreement and there
had been no “exchange” of the separate documents.
Legg v Burton [2017] EWHC 2088 (Ch), [2017] 4 WLR 186 at [22] and [23].
[2011] EWCA Civ 802, [2012] WLR 637 at [48], by Ward LJ.
See A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 1-
019 that the authority in Healey v Brown “should no longer be regarded as the law”. But see L Tucker, N Le
Poidevin and Master Brightwell, Lewin on Trusts (20th ed 2020) para 4-044 that despite describing the view
as “doubtful and the law is not settled”, warns that without further authority on this point “it is prudent to
assume that the 1989 Act may apply” to mutual will agreements.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para 6-
37.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 1-020; Re
Hobley (Deceased) [1997] CLY 4735, [2006] WTLR 467. Whether notice is required to revoke may depend
on the terms of the arrangement: see eg L Tucker, N Le Poidevin and Master Brightwell, Lewin on Trusts
(20th ed 2020) paras 4-046 to 4-047.
A constructive trust is a trust that arises without having been expressly created by the parties and is
imposed by the law: L Tucker, N Le Poidevin and Master Brightwell, Lewin on Trusts (20th ed 2020) para 8-
002.
See eg in Legg v Burton [2017] EWHC 2088 (Ch), [2017] 4 WLR 186. The survivor might instead be bound
to make a new will that reflects the wishes of the deceased in the terms of the mutual wills arrangement: see
eg Re Green [1951] Ch 148.
R Kerridge (assisted by A H R Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para 6-
39.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 2.8.
Above, para 1-023. We recommend that the rule that a marriage or civil partnership revokes a person’s
existing will be abolished in Recommendation 30: see Ch 13.
A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed 2021) para 1-021.
See eg Re Dale [1993] 4 All ER 129 p 37; Re Goodchild [1997] 3 All ER 63 p 700.
S Hudson and B Sloan, “Testamentary Freedom: Mutual Wills Might Let You Down”, [2015] Modern Studies
in Property Law 157, 174.
Consultation Paper, para 12.33.
Consultation Paper, para 12.33. See S Hudson and B Sloan, “Testamentary Freedom: Mutual Wills Might
Let You Down”, [2015] Modern Studies in Property Law 157, 174; and Charles v Fraser [2010] EWHC 2154
(Ch), [2010] WTLR 1489.
Consultation Paper, Consultation Question 62.
Consultation Paper, paras 12.28 to 12.31.
Consultation Paper, para 12.28.
S Hudson and B Sloan, “Testamentary Freedom: Mutual Wills Might Let You Down”, [2015] Modern Studies
in Property Law 157, 175.
Consultation Paper, para 12.32.
Of those responding to Consultation Question 62, 63% agreed, 23% disagreed and 14% expressed other
views.
[2002] EWHC 1405 (Ch), [2002] WTLR 849.
Anthony Collins Solicitors LLP, solicitors’ firm.
Society of Legal Scholars and CILEx.
Legg v Burton [2017] EWHC 2088 (Ch), [2017] 4 WLR 186 at [35] to [39] and [53].
Above, at [28] to [29] citing Secretary of State for the Home Department v Rehman [2003] 1 AC 153, [2002]
1 ALL ER 122 at [55].
Naidoo v Barton [2023] EWHC 500 (Ch), [2023] 1 WLR 2162 at [74]. However, the mutual will was invalid
for undue influence.
McLean v McLean [2023] EWHC 1863 (Ch), [2023] 4 WLR 69 at [14E].
Above, at [20], by Mann J, citing Re Goodchild [1997] 3 All ER 63, by Leggatt LJ.
McLean v McLean [2023] EWHC 1863 (Ch), [2023] 4 WLR 69 at [22].
Proprietary estoppel will operate in the testamentary context where one person has made a promise to
another that they will inherit an asset on the first person’s death and that other person has acted to their
detriment in relying on that promise. For example, a person might work for reduced wages on the
family farm because he has been promised by his father that he will inherit part of the farm: Guest v Guest
[2022] UKSC 27, 3 WLR 911.
Legg v Burton [2017] EWHC 2088 (Ch), [2017] 4 WLR 186 at [22] to [23], quoting Olins v Walters [2007]
EWHC 3060 (Ch), [2008] WTLR 339.
Legg v Burton [2017] EWHC 2088 (Ch), [2017] 4 WLR 186 at [27]. For the meaning of “obiter”, see the
glossary.
[2023] EWHC 1863 (Ch), [2023] 4 WLR 69.
M Stubbins, “MacLean v MacLean - Mutual Wills and Proprietary Estoppel: An Inexorable Evolution or
Doomed Diversion?” (2024) 88(1) The Conveyancer & Property Lawyer 86, 89.
McLean v McLean [2023] EWHC 1863 (Ch), [2023] 4 WLR 69 at [40].
[2017] EWHC 2088 (Ch), [2017] 4 WLR 186.
M Stubbins, “MacLean v MacLean - Mutual Wills and Proprietary Estoppel: An Inexorable Evolution or
Doomed Diversion?” (2024) 88(1) The Conveyancer & Property Lawyer 86, 92 to 93. See also L Tucker, N L
P (KC) and Master Brightwell, Lewin on Trusts (20th ed 2020) para 4-039B, which explains that a
representation sufficient for proprietary estoppel would not necessarily be sufficient as an agreement.
Winter v Winter [2023] EWHC 2393 (Ch), [2024] WTLR 327 at [157], by Zacaroli J.
[2017] EWHC 2088 (Ch), [2017] 4 WLR 186 at [35] to [39] and [53].
S Hudson and B Sloan, “Testamentary Freedom: Mutual Wills Might Let You Down”, [2015] Modern Studies
in Property Law 157, 165.
The Inheritance (Provision for Family and Dependants) Act 1975, s 9.
The Inheritance (Provision for Family and Dependants) Act 1975, ss 2 and 3, specifically referring to s
3(1)(d). The draft Bill, in cl 20(6)(a), amends the definition of “beneficiary” in section 25 of the 1975 Act to
include beneficiaries of mutual wills arrangements.
See Consultation Paper, para 1.26.
Consultation Paper, paras 12.22 to 12.26.
Re Beaumont [1902] 1 Ch 889, pp 892 to 893, by Buckly J.
Jones v Selby (1710) Prec Ch 300.
A Braun and A Rothel (eds), Passing Wealth on Death - Will-Substitutes in Comparative
Perspective (1st ed 2016) p 62.
A Learmonth, C Ford and J Evans-Gordon, Williams, Mortimer and Sunnucks: Executors, Administrators
and Probate (22nd ed 2023) para 32-03, quoting Hedges v Hedges (1852) Prec Chanc 269 (on appeal 2
Bro PC 457 at 462).
On formality requirements, see Ch 5 above.
Law of Property Act 1925, ss 52 and 53.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221 at [50] by Jackson LJ.
Above, at [96] by Patten LJ. See also A Learmonth, C Ford and J Evans-Gordon, Williams, Mortimer and
Sunnucks: Executors, Administrators and Probate (22nd ed 2023) para 32-06.
Re Dillon (1890) 44 Ch D 76, p 80; Re Farman (1887) 57 LJ Ch 637.
Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (22nd ed 2023) para 32-05,
citing Re Beaney [1978] 1 WLR 770.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221 at [55] by Jackson LJ.
Above, at [55] by Jackson LJ, citing Re Craven’s Estate [1937] 1 Ch 423, and [68].
In the past, contemplation of suicide would be insufficient because the donor was either considered to be
insane at death or intended to complete the gift by crime. In both of these cases, the gift would have failed.
However, as suicide is no longer a crime, this reasoning does not apply: A Learmonth, C Ford and J Evans-
Gordon, Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (22nd ed 2023) para 32-
06, citing Re Dudman [1925] Ch 553 and the Suicide Act 1961.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221 at [56] by Jackson LJ, overturning the decision in
Vallee v Birchwood [2013] EWHC 1449(Ch), [2014] Ch 271.
[2013] EWHC 1449 Ch, [2014] Ch 271.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221 at [56] by Jackson LJ.
Above, at [55] to [57] by Jackson LJ. See also E Rowntree, “Restricting an anomaly” (2015) 165 (7674) New
Law Journal 21,21.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221 at [58] by Jackson LJ; R Kerridge (assisted by A H R
Brierley), Parry and Kerridge: The Law of Succession (13th ed 2016) para 6-45; Williams, Mortimer and
Sunnucks: Executors, Administrators and Probate (22nd ed 2023) para 32-07.
R Kerridge (Assisted by A H R Brierly), Parry and Kerridge: The Law of Succession (13th ed 2016) para 6-
46; Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (22nd ed 2023) para 32-07,
both citing Gardner v Parker (1818) 3 Madd 184.
King v Dubrey [2015] EWCA Civ 581, [2016] CH 221. For a more recent example, see Davey v Bailey
[2021] EWHC 445 (Ch).
King v Dubrey [2015] EWCA Civ 581, [2016] CH 221 at [71] and [95].
Re Craven’s Estate [1937] Ch 423, cited in King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221 at [58], by
Jackson LJ.
Re Craven’s Estate [1937] Ch 423.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221 at [59] by Jackson LJ.
Rahman v Hassan [2024] EWHC 1290 (Ch) by HHJ Paul Matthews at [75] and A Learmonth, C Ford and J
Evans-Gordon, Williams, Mortimer and Sunnucks: Executors, Administrators and Probate (22nd ed 2023)
para 32-10.
Jones v Selby (1709) Fin Pr 288, cited in King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221 at [38] by
Jackson LJ.
Birch v Treasury Solicitor [1951] 1 Ch 298.
Duffield v Elwes (1827) 4 ER 959.
King v Dubrey [2015] EWCA Civ 581. See generally A Learmonth, C Ford and J Evans-Gordon, Williams,
Mortimer and Sunnucks: Executors Administrators and Probate (20th ed 2013) para 32-14; R Kerridge
(Assisted by A H R Brierly) Parry and Kerridge: The Law of Succession (13th ed 2016) paras 6-56 to 6-60.
Rahman v Hassan [2024] EWHC 1290 (Ch).
See Consultation Paper, paras 13.25 to 13.29.
Consultation Paper, para 13.33.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221.
Above, at [54], by Jackson LJ.
Consultation Paper, para 13.36.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221.
Consultation Paper, paras 13.38 to 13.40.
A Briggs, “DMC: not quite dead?” (2015) 165 (7661) New Law Journal 16.
H Cumber, “Donationes mortis cause; a doctrine on its deathbed?” [2016] 1 Conveyancer and Property
Lawyer 56, 60.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221 at [55], citing Wilkes v Allington [1931] 2 Ch 104.
Consultation Paper, para 13.41.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221.
Consultation Paper, para 13.42.
Consultation Paper, para 13.43.
Scottish Law Commission, Report on Succession (2007) Scot Law Com No 215, p 116.
Succession (Scotland) Act 2016, s 25 (in force as from 1 November 2016).
Consultation Paper, para 13.46.
See H Cumber, “Donationes mortis causa; a doctrine on its deathbed?” [2016] 1 Conveyancer and Property
Lawyer 56, 61.
Consultation Paper, paras 13.48 to 13.49.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221.
Consultation Paper, Consultation Question 63.
Of those responding to Consultation Question 63, approximately 45% supported abolition and 45%
supported retention. A further 10% expressed other views.
Dr Juliet Brook, academic; and the Society of Legal Scholars.
King v Dubrey [2015] EWCA Civ 581, [2016] Ch 221.
Which HHJ Matthews remarked upon: [2024] EWHC 1290 (Ch) at [143].
Rahman v Hassan [2024] EWHC 1290 (Ch) at [149] by HHJ Matthews. See also B Sloan, “DMC of
registered land? That’s the way it is” (2024) 83(3) Cambridge Law Journal 421,423.
Rahman v Hassan [2024] EWHC 1290 (Ch) at [156] to [157].
Rahman v Hassan [2024] EWHC 1290 (Ch), at [150] by HHJ Matthews, emphasis in original.
For example, see Birch v Treasury Solicitor [1951] 1 Ch 298.
See Staniland v Willott (1850) 3 Mac & G 664; Re Craven’s Estate [1937] Ch 423.
Rahman v Hassan [2024] EWHC 1290 (Ch), at [110] and [111] by HHJ Matthews, quoting Hardwicke LJ
in Ward v Turner above.
“Locked box” cases are those where a donor gives the donee the key to a locked box, but not the box itself.
The delivery of the key is considered delivery of dominion, as the contents of the box is controlled by the
key. Conversely, if the box is handed over to the donee but not the key, dominion over the contents has not
been delivered, as the donor retains control of the contents of the box through their possession of the key.
See Rahman v Hassan [2024] EWHC 1290 (Ch) at [84].
Rahman v Hassan [2024] EWHC 1290 (Ch) at [116].
Above, at [160] by HHJ Matthews.
Above, at [162] by HHJ Matthews.
Above, at [154] and [162]. See also B Sloan, “DMC of registered land? That’s the way it is” (2024) 83(3)
Cambridge Law Journal 421, 423.
See Ch 5 for a discussion of holograph wills.
Consultation Paper, paras 14.4 to 14.18.
Consultation Paper, Consultation Question 64.
Consultation Paper, paras 14.19 to 14.29.
See https://lawcom.gov.uk/project/burial-cremation-and-new-funerary-methods/.
The third sub-project will consider rights and obligations relating to funerary methods, funerals and remains.
Consultation Paper, para 14.32.
Consultation Paper, para 14.33.
Consultation Paper, Consultation Question 65.
Of those responding to Consultation Question 65, 90% said they were unaware, and 8% made other
comments.
DWF LLP and Penningtons Manches LLP.
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition
and enforcement of judgments in matrimonial matters and the matters of parental responsibility.
Since leaving the European Union, Brussels II no longer applies, and the position is now governed by the
Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-
operation in respect of parental responsibility and measures for the protection of children.
Wills Act 1963, giving effect to the Hague Convention of 1961 on the formal validity of wills.
Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and co-
operation in respect of parental responsibility and measures for the protection of children.
As we explain at para 5.143 above, para 12(2) of Sch 4 to our draft Bill amends the Children Act 1989 to
permit a guardian to be appointed in a privileged will, a point which was previously unclear due to s 5 of the
Children Act 1989 conflicting with s 4 of the Wills (Soldiers and Sailors) Act 1918.