Statutory Wills: Impending Reform

Reform of The Wills Act 1837 has been on the cards for a long time. The pandemic has, of course, already prompted some modernisation with temporary legalising the video witnessing of wills.

Permanent modernisation of the statutory wills law process could be one area that we see.

Statutory wills

The legislative basis for statutory wills is the Mental Capacity Act 2005. At the request of a deputy or attorney, it is the Court of Protection who has power to make a statutory will (or change the protected person’s will if they already have one in place) as a protective measure. A proposed draft will is put to the court for consideration.

If the individual lacks testamentary capacity to make their own will, the CoP can allow a statutory will to ensure their estate will pass to the beneficiaries they would have chosen had they been able to make a will for themselves. The signing of the will on P’s behalf must be done in accordance with strict statutory formalities (another necessary protective measure).

But what approach will the courts take? Importantly, the making of a statutory will must be in P’s ‘best interests’ – a particular area of concern for the Law Commission.

Munby J has also made important points on the issue of ‘best interests’ in the making of statutory wills in Re M (Statutory Will) [2011] 1 WLR 344 which practitioners should note.

Potential reform

In 2017, the Law Commission (England and Wales) consulted on a number of proposals for reform of wills legislation. including reviewing statutory wills. Some of the criticisms include whether it is appropriate to use the testator’s best wishes as the criterion on which a statutory will should be made, on the basis that it is difficult to apply a test of best interests to a disposition which only takes place after a testator has died.

There are also concerns at the length of time and cost involved (they can cost far in excess of than £5,000). It has been suggested that costs and potential delays could be reduced by statutory wills being made other than in the CoP.

The Law Commission has been analysing responses but the ‘wills project’, as it is called, was paused because of the pandemic and a new timetable has yet to be announced. Meanwhile, the Law Commission is now consulting on its 14th law reform programme and is seeking help in identifying areas of law that require reform.

The Law Society recently said it is “sensible” to keep statutory wills within the CoP’s jurisdiction, but said a comprehensive review of the law of wills should include a full review of the framework and operation of statutory wills.

It added: “We agree that the fact that a person had not made a will before losing capacity should not preclude the making of a statutory will on their behalf. Many people make a will in later life and it cannot be assumed that a person makes an active choice not to make a will.”

For now, practitioners advising deputies and attorneys must consider the meaning of ‘best interests’ in situations where P’s circumstances require a statutory will to be made.

The latest Law Commission consultation closes on 31 July 2021.


Posted on 26.05.21