Law Commission proposals to simplify Will writing: Supported Will-making

As part of their Consultation on making Wills, the Law Commission has also asked whether it might be time to introduce a scheme of 'supported Will-making.' With such a scheme in place, the Commission hopes that it might be possible for many more people with diminished capacity to put a Will in place.

See also our article regarding the proposed formalities changes.

Capacity

Currently, in order to make a valid Will, you must be considered to have the necessary 'capacity,' i.e. understanding, to do so. This test of ‘understanding’ dates from a case from the late 19th Century and by way of summary, it sets out in somewhat dated language that you must understand:
•    that you are making a Will and what its effect will be;
•    the extent of what you own and what you can deal with in your Will; and
•    who may be entitled to provision under your Will.
Therefore, many who suffer mental health conditions lack this necessary mental capacity to put a Will in place and an application on their behalf must instead be made to the Court of Protection for them to approve the execution of a 'Statutory Will,' a process which can be both expensive and time consuming.

The Scheme

The Law Commission believes that this does not reflect the evolution of medical understandings of disorders, diseases and conditions that affect a person’s capacity and that with a support scheme in place, many who cannot currently make a Will would be able to by allowing them to appoint a ‘supporter’ to help them do so.

This scheme would share similarities with how advocates and doctors help those with diminished capacity deal with local authority processes or make decisions for themselves by helping them to understand their different treatment options.

However, when it comes to deciding what such a scheme would look like in practice, the Commission acknowledges that there are a myriad of potential issues to consider. These centre around who would be able to be a supporter and what safeguards should be put in place to prevent exploitation or abuse without going too far and undermining the overall aim of the scheme.

For instance, should a supporter be a professional such as a practising solicitor, despite the fact that this would incur costs and may be unaffordable for some? Alternatively, should a supporter be a family member or close family friend or would this be too open to abuse and give rise to conflicts of interest? Similarly, should a supporter or any close associates or family members of the supporter be prevented from benefitting from the Will and should the supporter owe formal duties to the individual making the Will? The Law Commission has only tentatively answered these questions so we will need to watch this space.

Should you have any queries or require any advice or assistance with regards to Wills please do not hesitate to contact the Wills Team here at Franklins on 01908 660966 or wills@franklins-sols.co.uk who will be more than happy to guide you further.