The Wills Bill – The key implications for Charity Legacy teams

The current age requirement for making a will is 18. The only current exception to this is where a will is privileged by reason of the testator being in the armed forces and certain other conditions being met.

The proposal is to reduce the age requirement so that 16- and 17-year-olds would be able to make wills in the same way as adults. There is a further proposal for the court to have power to order that an even younger child can make a will if warranted by the circumstances.

Yes, in theory. Charities cannot inherit on intestacy, so enlarging the proportion of the population that can make wills means there is more potential for charitable legacies. However, in practice, we do not imagine this will be noticeably impactful sector wide.

Even having been empowered to do so, it’s likely that most 16- and 17-year-olds still will not make wills. Research performed in 2020 indicated that the average age of a testator was 58 and that people aged between 50 and 70 were responsible for more than half of wills made.

However, this proposal would open a previously closed door to charitable legacies and therefore some charities would inevitably receive legacies from minors, probably arising out of very specific and unfortunate circumstances.

One of the key themes of the report was modernisation, so it is no surprise that there are proposals to allow wills to be made digitally. The proposals are wide-ranging and would allow electronic signatures, digital witnessing (e.g. via video, as was temporarily allowed during and in the aftermath of the coronavirus pandemic) and for the will itself to exist in a purely digital format. The requirement for a will to be “in writing” would remain, but there would no longer be a need for the writing to be on paper (or other physical material).

The approach taken in the Bill is to require that, where a will is made digitally, a “reliable system” is used to ensure that the signatures are linked with those making them, to identify the “original” will (as distinct from any copies) and to protect the will against inappropriate alteration and/or destruction.

The “reliable system” requirement is somewhat vague and open to interpretation, but this is by design. The Law Commission did not wish to stray into the technological space (e.g. by making recommendations about what software and/or approaches would meet the “reliable system” standard), and has instead included a proposal that the government – via powers set out in the draft Bill – should have the ability to introduce secondary legislation to address this and related points.

Whilst the proposals in the draft Bill could come into force via a new Wills Act with no such secondary legislation having been passed at that time, it is perhaps more likely that both will happen in tandem. There will likely be many businesses (some pre-existing, some new) who will want to take commercial advantage of the new approach, but it would be difficult for them to do so without knowing if the technology and approach they are proposing to utilise would ultimately meet the “reliable system” standard.

A qualified yes. The expansion of the means by which a will can be made is likely to result in more wills being made. And more wills overall will surely mean more charitable legacies overall. That is undoubtedly a positive.

The more difficult point for charities will be whether or not wills made digitally in their favour are likely to be more susceptible to claims from those entitled under intestacy and/or earlier (and perhaps traditionally made) wills. If, as touched on above, we do see some tightly drafted secondary legislation around the “reliable system” standard, then that will help enormously.

“Perfect” is of course an unattainable standard. We don’t have a perfect system now (far from it) and the new system (if it when and arrives) won’t be perfect either. At this early stage, it’s impossible to know whether charities will face more validity claims or fewer, but the nature and detail of the claims in the future might be quite different to those we see today.

Finally, it could be said that the advent of digital wills may help with the unquantifiable but undoubtedly present risk of fraud where a charitable will is destroyed by someone “first on the scene” who would benefit on intestacy and/or an earlier will.

The classic scenario is of course a charitable homemade will – where the original is often the only evidence of its existence – being found in the deceased’s home and destroyed before anyone else (and certainly the charity) learns of its existence. Now imagine the same scenario but the will is digital, and perhaps stored behind security measures such logins and passwords. That could present its own problems of course, but the will would be harder to destroy.

This proposal addresses the problem that applying rigid formalities to the will-making process can lead to unjust outcomes. Take, for example, a terminally ill person who takes steps to make a will by e-mailing their solicitor setting out their wishes and asking for a will to be drawn up accordingly.

Sadly, the would-be testator dies before the solicitor was able to arrange for the will to be drawn up and executed. Under the law today, there is nothing that can be done to prove the will in those circumstances. There are certain potential remedies depending on the circumstances, e.g. claims under Inheritance (Provision for Family and Dependants) Act 1975 or in negligence against the solicitor, but these don’t change the fact that the will was not validly made and therefore cannot be proved.

Under the proposal, the High Court would have power to make an order under which a will can be proved despite one or more of the usual formality requirements (which would remain largely as per the Wills Act 1837) not being met.

The key point that the court would consider in relation to applications is whether the would-be will demonstrates the intentions of the person who made it, and continued to demonstrate their intentions until death. For a will to be deemed valid in this way, it would have to be in the form of a document, with the word “document” to be interpreted widely so as to include written and electronic records (including sound and video recordings). A purely oral will could not therefore be deemed valid, unless the relevant oral statements were recorded and saved and therefore took the form of a document. There are similar proposals relating to the alteration and revocation of wills.

The spirit behind this proposal is admirable, as it is undoubtedly the case that rigid formalities have, at times, prevented people’s genuinely held testamentary wishes from being put into effect. However, the proposal does carry a “floodgate” risk, and we imagine that the court would receive many such applications, with evidence such as e-mails, voice notes, WhatsApp messages and even social media posts all being potentially relevant. There is also a risk of abuse, as all of the aforementioned items (and more) are capable of being faked, but the court will no doubt be alive to this risk

Neutral. It is perhaps broadly neutral as the would-be will in question would sometimes benefit charities (e.g. with intestacy being the alternative) and, conversely, would sometimes prevent charities from benefitting (e.g. where there is a reconciliation of family relationships after a charitable will). It’s difficult to know which situation is more prevalent, but there may be a potential swing in favour of family situations, not necessarily because there are more of them, but because there may be plenty of good claims for charities that they never have the chance to make because they’re not made aware of the evidence. For now, we will say it’s likely that charities would make these applications roughly as often as they would defend (or, if appropriate, elect not to defend) them, but, if this does come into law, it will be interesting to see what trends form over time.

In our experience, charities want to see the right thing done, regardless of whether or not it benefits them, and they demonstrate this all the time via the use of ex-gratia payments, a process that is subject to oversight by the Charity Commission. There is a lot of potential overlap between this proposal and the existing process for charities granting ex-gratia payments, as many of the circumstances in which ex-gratia requests arise will be the same as those that, under this proposal, would warrant an application to court. It is often said that an ex-gratia claim is not appropriate where the claimant has a legal remedy, and therefore this proposal could, in theory, reduce the number of ex-gratia claims made around draft wills and the like. This could be viewed as a positive for charities as it will mean that such situations are assessed on a legal basis (as opposed to on a far more nebulous and subjective moral basis) with the deceased’s intentions being the guiding factor. It is hard to imagine that a charity could be justifiably criticised for abiding by the decision of the court in such circumstances.

This is a relatively simple one in technical terms. Today, marriage and civil partnership revokes a will unless the will was expressed to be made in contemplation of the said marriage or civil partnership. The Law Commission’s proposal is to repeal this law so that a will would survive a later marriage or civil partnership. The reasoning behind this relates largely to the problem of predatory marriages which allows unscrupulous individuals to befriend and later marry vulnerable persons with the aim of inheriting on intestacy and/or having a will made in their favour.

The problem, of course, is that most marriages are not predatory and some couples will likely marry and simply forget to make new wills when, had they thought about it, they would have done so. Surviving spouses and civil partners will have potential claims under Inheritance (Provision for Family & Dependants) Act 1975 in such circumstances, and this was a key consideration for the Law Commission, who noted that, as things stand, there is double protection for spouses and civil partners (i.e. the automatic revocation of wills and the 1975 Act) whereas there is little to no related protection in relation to predatory marriages.

Yes. At a moral level, charities of course stand against predatory marriages. At a commercial level, this is also in charities’ favour as many charitable wills are, today, sadly revoked by predatory marriages and therefore significant amounts of important legacy income may be saved if this change does come into law. Furthermore, charities are no strangers to facing 1975 Act claims. We imagine that, in cases where it is reasonably clear that a will in favour of the spouse or civil partner would have been made had the deceased got around to it (or it was not done because, in ignorance, they believed that marriage or civil partnership still revoked a will), it’s likely that defendant charities would view the claim favourably in terms of settlement offers, or even standing aside entirely if that is deemed by the charity trustees to be the right thing to do.