Wills Consultation

As part of our continuing effort to support and represent members, the Society are keen to keep up to date with Government Consultations and provide a response on behalf of members.

As many of our members will be aware, the Law Commission recently published a Consultation to reform the law surrounding Wills which, if implemented, would have a significant effect on our members practicing in this area. The closing date for submissions was 10 November 2017.

To gather responses, we held a Roundtable discussion at the Sheffield and District Law Society Hall on Campo Lane in Sheffield at 2.30pm on 25 October 2017. We received an excellent response and were pleased with the attendance of members from different firms across Sheffield and the District. The Roundtable was chaired by the current Sheffield and District Law Society President, Charles Neal, who is also a practicing Private Client Partner at Bell and Buxton LLP.

As the consultation document was so large, the discussion focussed on the key areas of reform and of the themes occurring throughout. Members were keen to share their opinions and experiences of how the issues in the Consultation had affected their practice.

Some of the main points of discussion were:

  • The delegates discussed the issue of Capacity and the Mental Capacity Act 2005. Members feel that capacity is a complex issue and can be circumstantial or can be gained and lost. Members were in favour of adopting the rules in the Mental Capacity Act 2005 as the test of capacity.

 

  • The Law Commission had recognised that we are moving towards a more electronic way of working and that provision should be made for us to accommodate electronic Will making through Secondary Legislation in the future. Our members felt that it would not be appropriate for Wills to be made electronically now, as the opportunity for fraud is too great. However, they recognised that provision would need to be made for this in the future, once technology advances to enable us to do so safely. However, as this is such a critical issue, delegates felt that this would be an issue for Parliament and that therefore, only Primary Legislation would be appropriate.

 

  • The delegates discussed the Law Commission’s proposal to create powers to dispense with the formalities of a valid Will to give effect to the Testator’s wishes. Whilst members discussed some of the pitfalls of this, they generally felt that this would be a sensible and beneficial change to the law. It was stressed at the meeting that these powers should only be used to correct genuine mistakes and not as a means of avoiding formality requirements.

 

  • Members discussed the Law Commission’s proposal to reduce the age for testamentary capacity from 18 to 16. Opinions on this matter were divided, and differed based on personal experience with people of this age. The delegates were agreed that this is an important issue and that therefore the Law Society and Law Commission should work together to achieve a sensible outcome.

 

  • Members strongly felt that Wills should only be drafted by Solicitors and qualified professionals. There are numerous formalities to create a valid Will and it is unlikely that the lay person will comply. It is also important that Testators take advice from a solicitor regarding their personal circumstances at the time of drafting, as well as any events which may give rise to revocation.

The member’s responses during the discussion were collated by Hollie Hemmens, a Committee Member and Trainee Solicitor at hlw Keeble Hawson LLP, and used to form a collective response to the Consultation.

The Sheffield and District Law Society will continue to raise awareness of issues such as this and are keen to promote member’s views as a representative body. We will continue to respond to Government consultation documents and following the success of this Roundtable discussion, will be holding similar events as further Consultations are released.