1. The Law Commission’s review of the law of wills Spencer Clarke Lawyer, property, family and trust team 15 May 2015

2. What is the Law Commission? The Law Commission of England and Wales is an independent statutory body, set up by the Law Commission’s Act 1965. We are an advisory Non-Departmental Public Body, sponsored by the Ministry of Justice, but we undertake work for a range of other government departments and for the Welsh Government.

3. What do we do and who are we? “To keep the whole of the law of England and Wales under review with a view to its systematic development and reform.” While our remit covers England and Wales, we work closely with other Law Commissions in Scotland and Northern Ireland. Chairman, and 4 full time Commissioners each leading a team. Around 60 staff – including lawyers, Parliamentary Counsel, research assistants, economist. Law Commission ParliamentGovernmentJudiciary

4. How do we work? How do we select projects? –programmes of law reform (suggestions by stakeholders) –commissioned by Government –consolidation and statute law repeals. protocol with the Lord Chancellor governs how projects will be undertaken and how Government will respond How do we work? Research Identify, contact and engage stakeholders Advisory groups Evidence based approach Produce consultation paper Meetings, public events Recent and current examples of interest: Intestacy and Family Provision Claims on Death (which led to the Inheritance and Trustee Powers Act 2014); Selected Issues in Charity Law.

5. Review of the law of wills Scope of the review is not set in stone; we are interested to hear views from stakeholders. Generally: do we want to make it easier to make a will? If so, can the law be reformed to encourage and facilitate will- making, taking account of developments in technology and medicine? Provisionally, four key areas: –testamentary capacity –formalities –rectification of a will –mutual wills –And…?

6. Testamentary capacity The Banks v Goodfellow (1870) test applies. Recent case law has reaffirmed the common law test’s continued relevance, rather than the test in the Mental Capacity Act 2005 (Walker v Badmin, 2014). Related issue of whether ‘the golden rule’ (Kenward v Adams, 1975) is practicable? We have been told reform is needed, in light of advances in the understanding of mental capacity and the increasing problem of dementia.

7. Formalities for making a will Formal validity of a will is governed by the Wills Act 1837. Given the social and technological developments since the early Victorian age, are these provisions fit for purpose? What about online wills?

8. Rectification of a will The power for the court to ‘rectify’ a will has been highlighted by the recent case of Marley v Rawlings (2014) – where the testators signed each others’ wills in error. Is reform needed? In appropriate cases should there be a general power for the court to dispense with the formal requirements for making a will?

9. Mutual wills Where two people agree who should inherit their property on death and execute wills to effect that agreement, intending to prevent the survivor from changing or resiling from that agreement. These are rare but problematic as they restrict testamentary freedom. Should they be abolished?

10. Get involved… Expect to start work on the project in late 2015. Project expected to last 3 years. We welcome contact from stakeholders, after the start of the project but before publication of the consultation paper, to inform our thinking. Consultation paper will usually be published around a year after the start of the project. The project will include a formal consultation period, usually running for three months from publication of the consultation paper, during which we run consultation events and invite responses to the paper. For updates on the status of the project see http://lawcommission.justice.gov.uk/areas/wills.htm http://lawcommission.justice.gov.uk/areas/wills.htm