Last week, the Law Commission for England and Wales published its long-awaited review of the law governing Wills south of the border. Fergus Spowart and Dylan Mitchell delve into the Commission’s proposals and how these compare to the law concerning Wills in Scotland.
When Queen Victoria ascended to the throne in 1837, Britain was unrecognisable compared to the nation we know today. Horse-drawn carriages dominated the streets, the average life expectancy hovered in the high 30s, and the industrial revolution was transforming society. Against this backdrop, Parliament enacted the Wills Act 1837; legislation that would govern testamentary matters in England and Wales for nearly two centuries.
While the 1837 Act has shown remarkable resilience, modern Britain presents a dramatically different demographic and socioeconomic landscape. This is increasingly challenging the Act’s continued efficacy. Since its inception, life expectancy has doubled. With an aging population comes the accumulation of wealth and assets of greater value and complexity. Gone are the quills and ink – technology has radically changed our lives with almost all of us dependent on digitalisation in one form or another. And there is the threat of increased vulnerability, declining physical health and cognitive capacity in later years.
The Law Commission of England and Wales recognised this need for change and put forward several recommendations for reforming the law which, if implemented, are to be incorporated into a new Wills Act. Here we explore some of these recommendations and how they compare with the position in Scotland today.
Written formalities
Currently in England and Wales (and similar to that in Scotland), a will is not valid where it fails to meet the written formalities required. This means that, no matter how clear the testator’s intentions are within a document, if it fails to meet the Act’s requirements then it is not considered a valid will. This could leave a testator’s estate subject to the laws of intestacy, which can have significant ramifications on what will be distributed and to which beneficiaries. Ensuring the law supports testators’ freedom to decide how their property is dealt with after their death is paramount to the Report and its recommendations
The Commission recommends that the minimum age for an adult to put a will in place to be lowered from 18 to 16. It also proposes that the courts are granted a ‘dispensing power’ to make an order for a record made by the testator to be treated as a formally valid will in certain circumstances even though it might not otherwise be. This extends from homemade wills as far as electronic documents, videos, and sound recordings. The court would have to be satisfied that the record in whatever form demonstrates the clear and genuine testamentary intentions of the testator and that their intentions remained unchanged at the time of the person’s death.
In Scotland, the courts do not have such power. For a will to be valid, the testator must be at least 12 years old – dramatically lower than the current age of 18 in England & Wales and still lower than the newly proposed age 16. At a minimum, it must be in writing and physically signed by the testator at the end of the document as a sign that their wishes have been concluded. A professionally prepared Will, however, will almost always conform to a higher standard of formal validity. The will should always signed on each page by the testator in the presence of an independent witness who should sign the last page, providing their full name and address.
Unsigned documents and video or electronic recordings appearing to show the testator’s wishes, whilst persuasive, do not amount to a will in Scotland. ‘The rule is inflexible – no subscription, no will’ Lord Trayner famously said. This strict approach has led to some quirky decisions of the courts over the years including the famous ‘envelope case’ of Davidson v Convey. In Davidson, the deceased left an envelope with “My will” followed by their name. Inside the envelope was a sheet of paper which appeared to look like a Will but was crucially unsigned. Perhaps straining to give effect to what appeared to be the clear wishes of the deceased, the court held that the signed envelope was a validly executed Will which adopted the contents within.
Granting the courts such a ‘dispensing power’ as has been recommended in England and Wales would provide a far clear remedy for such situations. If inspiration is taken in Scotland and a similar provision is implemented, an avenue would be open for people in Scotland to bring such matter before the court and perhaps save the court having to consider imaginative workarounds to give effect to clear but formally invalid wishes.
Electronic Wills
Recognising the evolving digitalisation of our lives, the Commission also recommends there be express provision for electronic wills in England and Wales. This is likely to be a debated recommendation with strong views no doubt held by each camp. To ensure security, electronic wills would need to meet additional requirements, including using a reliable system that links signatures to signers, identifies the will distinctly, and protects against unauthorised alteration. Only time will tell if these proposed changes will be enough to encourage both legal professionals and the public in England and Wales to embrace digital wills.
This recommendation if implemented would be radically different to the position in Scotland as things stand. There is no provision in Scotland for purely electronic wills which has long been seen as an avenue which could be open to abuse. Whilst there may be an appetite for reconsideration of Scotland’s insistence on a principal signed will, no doubt reignited by this report, it remains to be seen whether it will bring about change in Scotland. Rather than focus on purely electronic wills, arguably reform in Scotland would be better directed at difficulties which can arise where a valid will existed but only a copy can be found. Presently, where the principal signed will cannot be located but a copy exists, a court action is required to seek an order giving effect to the copy. This can be an expensive and delaying hurdle for executors dealing with a testator’s estate.
Mistakes in Wills
According to the Commission, currently courts in England and Wales can correct ‘clerical errors’ but not ‘drafting errors’ in wills. The Commission recommends expanding the court’s power to rectify mistakes in wills. The proposed reform would allow rectification where a will fails to reflect the testator’s intentions because the drafter, such as a solicitor, misunderstood the meaning or effect of the language used amounting to a drafting error.
It appears inspiration has been taken from the position in Scotland. Since the introduction of the Succession (Scotland) Act 2016, the courts in Scotland can rectify a will prepared by someone on behalf of the testator where the court is satisfied the will fails to express accurately what was instructed. By focusing on what the testator actually instructed, we avoid unhelpful distinctions between clerical and drafting errors. The court has the power to order that the will be rectified so as to give effect to the testator’s instructions.
The Effect of Marriage
Presently, in England and Wales marriage or civil partnership automatically revokes a will. This rule, dating from Victorian times, operates without most people’s knowledge and can frustrate testamentary intentions. The Commission recommends that this be abolished, arguing that modern social contexts, including cohabitation before marriage and later-life marriages, make the rule less relevant.
In Scotland, this is already the case. Marriage does not revoke a made previously by a spouse or legal partner – but divorce will have an effect. Where persons that have been married or in a civil partnership divorce, they are to be treated as having died before the testator for the purposes of the will meaning that any entitlement or benefit will not take effect unless the will expressly provides otherwise.
Conclusion
The recent proposals for reforming the law on wills in England and Wales, as outlined by the Law Commission, reflect a significant shift towards modernisation, aiming to address contemporary challenges such as technological advancements and evolving societal norms. While these proposals introduce progressive changes, they also highlight a divergence from the legal landscape in Scotland, where reforms have already been implemented in some cases to address similar issues. These differences underscore Scotland’s independent approach to the law of succession, driven by its distinct legal traditions. It is reassuring to see that many of the proposals made by the Commission are already in place in Scotland in one form or another. Where they are not, such as the proposed ‘dispensing power’ or electronic wills, practitioners in Scotland will no doubt be keeping an eye on how these proposals progress in England and Wales to see if lessons can be learned here. As both jurisdictions continue to evolve, ongoing comparisons will be essential in ensuring that the law remains responsive and relevant to the needs of the public.
The Law Commission of England and Wales’s report “Modernising Wills Law” can be accessed here.
Home > News + events > From Victorian Quills to Digital Wills: How England’s Proposed Reforms Compare to Scottish Law
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Dylan Mitchell
From Victorian Quills to Digital Wills: How England’s Proposed Reforms Compare to Scottish Law
Last week, the Law Commission for England and Wales published its long-awaited review of the law governing Wills south of the border. Fergus Spowart and Dylan Mitchell delve into the Commission’s proposals and how these compare to the law concerning Wills in Scotland.
When Queen Victoria ascended to the throne in 1837, Britain was unrecognisable compared to the nation we know today. Horse-drawn carriages dominated the streets, the average life expectancy hovered in the high 30s, and the industrial revolution was transforming society. Against this backdrop, Parliament enacted the Wills Act 1837; legislation that would govern testamentary matters in England and Wales for nearly two centuries.
While the 1837 Act has shown remarkable resilience, modern Britain presents a dramatically different demographic and socioeconomic landscape. This is increasingly challenging the Act’s continued efficacy. Since its inception, life expectancy has doubled. With an aging population comes the accumulation of wealth and assets of greater value and complexity. Gone are the quills and ink – technology has radically changed our lives with almost all of us dependent on digitalisation in one form or another. And there is the threat of increased vulnerability, declining physical health and cognitive capacity in later years.
The Law Commission of England and Wales recognised this need for change and put forward several recommendations for reforming the law which, if implemented, are to be incorporated into a new Wills Act. Here we explore some of these recommendations and how they compare with the position in Scotland today.
Written formalities
Currently in England and Wales (and similar to that in Scotland), a will is not valid where it fails to meet the written formalities required. This means that, no matter how clear the testator’s intentions are within a document, if it fails to meet the Act’s requirements then it is not considered a valid will. This could leave a testator’s estate subject to the laws of intestacy, which can have significant ramifications on what will be distributed and to which beneficiaries. Ensuring the law supports testators’ freedom to decide how their property is dealt with after their death is paramount to the Report and its recommendations
The Commission recommends that the minimum age for an adult to put a will in place to be lowered from 18 to 16. It also proposes that the courts are granted a ‘dispensing power’ to make an order for a record made by the testator to be treated as a formally valid will in certain circumstances even though it might not otherwise be. This extends from homemade wills as far as electronic documents, videos, and sound recordings. The court would have to be satisfied that the record in whatever form demonstrates the clear and genuine testamentary intentions of the testator and that their intentions remained unchanged at the time of the person’s death.
In Scotland, the courts do not have such power. For a will to be valid, the testator must be at least 12 years old – dramatically lower than the current age of 18 in England & Wales and still lower than the newly proposed age 16. At a minimum, it must be in writing and physically signed by the testator at the end of the document as a sign that their wishes have been concluded. A professionally prepared Will, however, will almost always conform to a higher standard of formal validity. The will should always signed on each page by the testator in the presence of an independent witness who should sign the last page, providing their full name and address.
Unsigned documents and video or electronic recordings appearing to show the testator’s wishes, whilst persuasive, do not amount to a will in Scotland. ‘The rule is inflexible – no subscription, no will’ Lord Trayner famously said. This strict approach has led to some quirky decisions of the courts over the years including the famous ‘envelope case’ of Davidson v Convey. In Davidson, the deceased left an envelope with “My will” followed by their name. Inside the envelope was a sheet of paper which appeared to look like a Will but was crucially unsigned. Perhaps straining to give effect to what appeared to be the clear wishes of the deceased, the court held that the signed envelope was a validly executed Will which adopted the contents within.
Granting the courts such a ‘dispensing power’ as has been recommended in England and Wales would provide a far clear remedy for such situations. If inspiration is taken in Scotland and a similar provision is implemented, an avenue would be open for people in Scotland to bring such matter before the court and perhaps save the court having to consider imaginative workarounds to give effect to clear but formally invalid wishes.
Electronic Wills
Recognising the evolving digitalisation of our lives, the Commission also recommends there be express provision for electronic wills in England and Wales. This is likely to be a debated recommendation with strong views no doubt held by each camp. To ensure security, electronic wills would need to meet additional requirements, including using a reliable system that links signatures to signers, identifies the will distinctly, and protects against unauthorised alteration. Only time will tell if these proposed changes will be enough to encourage both legal professionals and the public in England and Wales to embrace digital wills.
This recommendation if implemented would be radically different to the position in Scotland as things stand. There is no provision in Scotland for purely electronic wills which has long been seen as an avenue which could be open to abuse. Whilst there may be an appetite for reconsideration of Scotland’s insistence on a principal signed will, no doubt reignited by this report, it remains to be seen whether it will bring about change in Scotland. Rather than focus on purely electronic wills, arguably reform in Scotland would be better directed at difficulties which can arise where a valid will existed but only a copy can be found. Presently, where the principal signed will cannot be located but a copy exists, a court action is required to seek an order giving effect to the copy. This can be an expensive and delaying hurdle for executors dealing with a testator’s estate.
Mistakes in Wills
According to the Commission, currently courts in England and Wales can correct ‘clerical errors’ but not ‘drafting errors’ in wills. The Commission recommends expanding the court’s power to rectify mistakes in wills. The proposed reform would allow rectification where a will fails to reflect the testator’s intentions because the drafter, such as a solicitor, misunderstood the meaning or effect of the language used amounting to a drafting error.
It appears inspiration has been taken from the position in Scotland. Since the introduction of the Succession (Scotland) Act 2016, the courts in Scotland can rectify a will prepared by someone on behalf of the testator where the court is satisfied the will fails to express accurately what was instructed. By focusing on what the testator actually instructed, we avoid unhelpful distinctions between clerical and drafting errors. The court has the power to order that the will be rectified so as to give effect to the testator’s instructions.
The Effect of Marriage
Presently, in England and Wales marriage or civil partnership automatically revokes a will. This rule, dating from Victorian times, operates without most people’s knowledge and can frustrate testamentary intentions. The Commission recommends that this be abolished, arguing that modern social contexts, including cohabitation before marriage and later-life marriages, make the rule less relevant.
In Scotland, this is already the case. Marriage does not revoke a made previously by a spouse or legal partner – but divorce will have an effect. Where persons that have been married or in a civil partnership divorce, they are to be treated as having died before the testator for the purposes of the will meaning that any entitlement or benefit will not take effect unless the will expressly provides otherwise.
Conclusion
The recent proposals for reforming the law on wills in England and Wales, as outlined by the Law Commission, reflect a significant shift towards modernisation, aiming to address contemporary challenges such as technological advancements and evolving societal norms. While these proposals introduce progressive changes, they also highlight a divergence from the legal landscape in Scotland, where reforms have already been implemented in some cases to address similar issues. These differences underscore Scotland’s independent approach to the law of succession, driven by its distinct legal traditions. It is reassuring to see that many of the proposals made by the Commission are already in place in Scotland in one form or another. Where they are not, such as the proposed ‘dispensing power’ or electronic wills, practitioners in Scotland will no doubt be keeping an eye on how these proposals progress in England and Wales to see if lessons can be learned here. As both jurisdictions continue to evolve, ongoing comparisons will be essential in ensuring that the law remains responsive and relevant to the needs of the public.
The Law Commission of England and Wales’s report “Modernising Wills Law” can be accessed here.