Major overhaul of the law affecting Wills; what to expect

2017 was a particularly interesting year when it comes to the law surrounding disputes about Wills and probate. Rulings in favour of disinherited adult children claiming reasonable provision out of a parent’s Estate led to a rise in the number of Will disputes before the Courts. This has prompted debate as to whether the existing legislation remains ‘fit for purpose’, with the Law Commission and practitioners alike acknowledging that reform is long overdue.

IIott v Blue Cross and others

The long-running case of IIott v Blue Cross and others finally concluded last year when the Supreme Court found in favour of a disinherited adult daughter; awarding her a share of her mother’s Estate. See our previous article here for a reminder of the facts. The Supreme Court reinstated the ruling of the District Judge of first instance and awarded Mrs Ilott £50,000 (the Court of Appeal had increased the award to £143,000). The Supreme Court held the Court of Appeal had given little weight to the mother’s clear wishes and to the long period of estrangement. Another important observation from the Supreme Court was that Mrs Jackson’s chosen beneficiaries did not need to justify their claim whether by need or by expectation. Lady Hale of the Supreme Court also commented on the ‘unsatisfactory state of the present law, giving as it does no guidance as to the factors to be taken into account in deciding whether an adult child is deserving of undeserving of reasonable maintenance’.

Nahajec v Fowle

As expected, the Ilott ruling galvanised other aggrieved individuals to make a claim against a parent’s Estate. Shortly after the ruling in Ilott, the County Court awarded an adult daughter reasonable provision out of her deceased father’s Estate (worth approximately £240,000) which he had left to a deprived friend. Prior to his death, the father had written a letter setting out the reasons for disinheriting his three children.

The deceased’s daughter claimed £59,000 from her father’s Estate under The 1975 Act. Like Mrs Ilot, she was in financial difficulties and not to blame for the estrangement from her father. The daughter asked for the money to fund a veterinary nurse course in addition to settling various debts. The Court allowed the claim but limited the award to £30,000 because there was no credible evidence the daughter planned to commence the veterinary course while her father was alive and, in any event, there was no guarantee she would enrol on the veterinary course.

What is next?

Following the above cases, 2018 could see a wave of legislative changes with large-scale reforms having already been put forward for consideration by the Law Commission. The consultation Making a Will, which closed in November 2017, set out various proposals which aim to reflect the raft of societal changes that have occurred in England and Wales since the existing legislation was first given Royal assent during the Victorian era. The proposals, which aim to bring the law on making a Will into the 21^st century, include the following:

• Giving the Courts more flexibility to uphold Wills that do not meet legal requirements but where the testator’s intentions are nevertheless clear – see for example the controversial case of Nichol v Nichol below where the Australian Supreme Court deemed a text message a valid Will.
• Using the Mental Capacity Act test to establish capacity to write a Will – this is the two stage test contained in the Mental Capacity Act 2005; (1) Does the person have an impairment of, or a disturbance in the functioning of, the mind or brain?; and (2) Does the impairment or disturbance mean that the person is unable to make the specific decision at the time that it needs to be made? Currently different tests are applied depending on whether a testator is executing a Will or whether a Will is made once a testator has lost capacity to make a Will themselves.
• Reducing the age for making a valid Will from 18 to 16 years of age.
• The possibility of online or electronic Will writing.
• Introducing a statutory presumption of capacity to write a Will.
• Providing statutory guidance by way of a Code of Practice for doctors and other professionals on how capacity should be assesses.

Whilst the Law Commission has a clear desire to bring the existing legislation in line with 21^st Century practices there is significant concern amongst practitioners that the above proposals could lead to excessive informality. The new proposals could ‘fuel the fire’ for increased uncertainty resulting in an even greater number of cases coming before the Courts for determination.

Whether the UK parliament and Courts will go as far as to follow the decision in Nichol v Nichol and another remains to be seen. This was a recent Australian case in which the Supreme Court in Brisbane held that an unsent text message on the deceased’s mobile phone, which finished with “my Will”, was to be accepted as a valid Will. The Court held that the 'informal nature of the text does not exclude it from being sufficient to represent the deceased’s testamentary intentions’.

Given the recent judgments in IIott and Nahajec, in tandem with the proposed legislative reforms, there appears to be a strong appetite for substantive change in the Wills and probate legal sector. It remains to be seen however which proposals (if any) will be given the green light and how and when these will be implemented.

If you wish to make a claim against an Estate, or need to defend such a claim, please contact our Wills & Probate Disputes Team who can provide expert advice. Equally, if you require assistance with making a Will, then please contact our Wills, Estates & Powers of Attorney Team.

Please note: the contents of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.