Consultation: Mental capacity in the law of wills

Public consultation open: 13 July 2017 – 10 November 2017. 

The outdated law of wills needs an overhaul according to the Law Commission. Victorian laws, out of step with the modern world, are failing to protect the vulnerable – and not allowing others to distribute their cherished possessions after they’ve gone.

[The] Law Commission is consulting on proposals to soften the strict formality rules, a new mental capacity test which takes into account the modern understanding of conditions like dementia, and a suggestion that the age for making a will should be lowered from 18 to 16.

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; doesn’t reflect the understanding of conditions like dementia where mental capacity can be changeable; and differs from the modern test for capacity in other areas of decision-making – the Mental Capacity Act 2005.

In its consultation paper the Law Commission proposes:

  • Giving the court power to recognise a will in cases where the formality rules haven’t been followed but the will-maker has made clear their intentions.

  • An overhaul of the rules protecting those making a will from being unduly influenced by another person.

  • Applying the test of capacity in the Mental Capacity Act 2005 to the question of whether a person has the capacity to make a will.

  • Providing statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will.

  • Giving the Lord Chancellor power to make provision for electronic wills.

  • Lowering the age at which people are able to make a will from 18 to 16 years old.

Further information

The consultation document, along with further information about the project and how to respond, is available here.

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