The Law Commission suggests a number of proposals to help simplify Will writing. One of the main aspects that the Law Commission reviews in relation to Will writing simplification is the formalities required to execute, or create, a valid Will. Strict compliance with the formality requirements is necessary in order to execute a valid Will and failure to do so results in someone passing away intestate (or without a Will) even when their wishes are obvious. The Law Commission recognises this as an issue and suggests what they call a dispensing power to try to mitigate its effect.
What are Dispensing Powers?
Dispensing powers are the power of a court to permit a Will to be used in the administration of an estate even though the formalities required to create a valid Will were not strictly complied with. UK law does not currently permit this but other jurisdictions have put similar powers in place. In order to make use of such a power, interested parties would have to apply to the court during the administration process and convince the judge that the Will was what the person wanted, despite their failure to follow the formalities.
It is important to note that the court can already make allowances for other incorrect aspects of a Will such as spelling mistakes or other error, for example where a person has signed their spouse’s Will rather than their own. However as the Law Commission highlights, judges have no authority to declare a Will valid even if a small aspect of the formalities has not been complied with.
Is it a good proposal?
On the face of it, this sounds like a sensible proposal. Where the wishes of a person are clear, the Will should be given effect to. However, looking at the formality requirements, it is difficult to find one that if not complied with, could be ignored.
The formality requirements consist of the Will being in writing, signed by the testator (the person making the Will), in the presence of two witnesses and signed by those two witnesses in the testator’s presence. Each of these requirements is in place to protect the testator, to make sure another person does not forge the Will or alternatively, to make sure no one is putting undue influence on the testator.
Consequently, I would suggest rather than changing the formality rules, better publicity of what the requirements are would help considerably.