Modernising Wills - reform and protecting the vulnerable

Few professions are as infamous for their resistance to change as lawyers, and the reasons are understandable. Justice requires that where circumstances remain the same, the law should apply identical results, rapid change would undermine this core principle. Few areas of law have changed as little as the law for the creation of Wills, which has been settled in England and Wales for nearly 200 years since the crowning of Queen Victoria, and the inventions such as the lightbulb, the telephone, air travel, the internet and vaccines.

Society, however, has transformed significantly. Take Malton for example, in 1850 the average age was estimated to be 26 years old and now it is estimated to be 49 years old. In 1850 most of the population would have been living in the countryside, working in agriculture, earning as a household less than £11,000 when adjusted for inflation per annum and owning no significant property. Today nearly 75% of all over 65-year-olds own their own home, which is a significant asset that they have worked their whole lives to achieve.

Clearly the circumstances have changed, and the law needs reform to reflect a world where we live longer, potentially become more vulnerable in old age, and our Wills stand to distribute increasingly significant sums. The financial incentives to abuse the creation of Wills at the expense of elderly vulnerable people have never been greater and with it, the need for reform to protect the vulnerable is paramount.  

As we age, we become more vulnerable to ill health which can affect our ability to make decisions, referred to by lawyers as ‘capacity’, an example of this is dementia. The number of people living with dementia is estimated to be over 1,400,000 and is expected to rise as the population ages. A certain level of capacity is required to make a Will. As a result, advisers are having to consider the issue of capacity more and more to protect vulnerable clients from making Wills, often under pressure from those close to them.

People who lack capacity are at risk of financial abuse and the unscrupulous will seek to take advantage of that by influencing a person to change their Will to benefit them at the expense of the family. Currently it is extremely difficult to challenge a Will if you suspect there is undue influence when creating the Will. The reason is, without direct evidence of undue pressure (which is near impossible as the pressure often occurs in private) it is unlikely a challenge Will be successful.

The Law Commission have proposed that in certain circumstances the Court should be able to infer undue influence which would shift the burden of evidence from the person challenging the Will to its proponent. The benefit of this shift is that the person who has greatest access to the relevant evidence will be required to present it at court. If the Will was a result of financial abuse, it is less likely it will have been made under the supervision of a legal adviser, and there will be less evidence available to prove its validity and the lack of influence which increases protection for vulnerable people.

To further protect vulnerable clients the Law Commission has proposed to revoke the law which automatically revokes a party’s Will should they be married. The purpose of the current law is to encourage people to take account of their changing circumstances and make provisions for their spouses within their Wills. The legal capacity required to marry is much lower than that required to make a Will. As a result, currently abusers may exploit vulnerable individuals, marrying them to inherit their estate under intestacy rules. There is no requirement to inform the wider family of the marriage and once completed even if the victim is found to have lacked capacity, the marriage will not be void. The intestacy rules state that the spouse (their abuser) will receive a £322,000 legacy, all their personal possessions, and a half share of the remainder of the estate.

The reform proposed would prevent a Will from being automatically revoked upon marriage removing the financial incentives for predatory marriages. Spouses who are not provided for under the Will would still have protection, as they could make a claim against the estate for reasonable financial provision. Overall, these are sensible proposals that will protect the vulnerable.

The proposals by the Law Commission stand to improve protection from financial exploitation for some of society’s most vulnerable people. While the reforms are being implemented, it is crucial to protect yourself and your family with a well-structured Will and Lasting Powers of Attorneys (LPAs). LPAs empower trusted individuals to make important financial and healthcare decisions should you lose capacity.

At Crombie Wilkinson Solicitors, our specialist legal advisers offer comprehensive estate planning services, including drafting Wills, setting up LPAs, and advising on inheritance tax planning. These measures work together to provide peace of mind, ensure your wishes are upheld, and protect you and your family as you age.

To discuss your personal circumstances, please contact a member of our Private Client team and make an appointment, we are here to help. We have offices in York, Selby, Malton and Pickering.