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Call for mental capacity test when writing a will

Written by: Paloma Kubiak
The Law Commission has proposed a number of measures to overhaul the ‘unclear and outdated’ will rules, including the call for a mental capacity test to take account of dementia.

The independent review body said the Victorian laws are out of step with the modern world and are failing to protect the vulnerable people in society, even putting people off writing will altogether.

When writing a will, certain procedures must be followed for it to be valid. If the formal rules aren’t followed – even when someone’s intentions are clear – people’s dying wishes aren’t enforced, the Law Commission warned.

Wills are also only valid if the person writing it understands what they are doing – however the law uses a Victorian test which takes no account of modern medical understanding.

It focuses on “delusions” of the mind and it doesn’t reflect the understanding of conditions like dementia where mental capacity can be changeable.

As a result, the Law Commission is consulting on proposals to give courts the power to recognise a will in cases where the formality rules haven’t been followed but the will-maker has made clear their intentions. It’s calling for a new mental capacity test which takes into account conditions such as dementia, and it suggests the age for making a will should be lowered from 18 to 16.

It also wants to pave the way for the introduction of electronic wills, to “better reflect the modern world”.

Law commissioner, professor Nick Hopkins, said:Making a will and passing on your possessions after you’ve died should be straightforward. But the law is unclear, outdated and could even be putting people off altogether.

“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.

“That’s not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”

James Antoniou, head of wills for the Co-op, said making the law more accessible is one of the biggest challenges facing the legal industry.

“However, at the moment, the laws about what makes a will legally valid are strict and clear. So any relaxation of these rules, by giving the courts power to recognise other types of communication, creates uncertainty which could lead to a greater number of legal disputes and ultimately with families suffering the associated legal costs.”

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