Modernizing the Law of Wills in the UK – Should Canada Follow Suit?
The UK Association of Contentious Trusts and Probate Specialists (ACTAPS) has just notified its members as follows:
The UK Law Commission has on 13 July 2017 published its new consultation paper, “Making a Will”. The paper sets out the case for reform of this largely Victorian area of the law, makes provisional proposals and asks questions. Based on estimates that 40% of people who die every year haven’t made a will the Commission wants to make sure that the law around wills is working for everyone. It believes that the law of wills can do more to protect the vulnerable and to give expression to people’s testamentary wishes.
Proposed plans include:
·Introducing a power to dispense with the formalities for a will, to allow courts to recognise wills where the deceased’s testamentary intentions are clear;
·Enabling electronic wills provided that there is sufficient protection for testators against fraud and undue influence;
·The creation of a separate doctrine of testamentary undue influence;
·Bringing the test for testamentary capacity within the Mental Capacity Act 2005 to take into account modern understanding of conditions like dementia; and
·Reducing the age at which a will can be made to 16.
Alongside these, and other proposals and questions covering the law of wills from ademption to revocation, the Law Commission is also asking for evidence of the main barriers to people making a will, and for details of the impact that wills disputes have.
Law Commissioner Professor Nick Hopkins said:
“Making a will and passing on your possessions after you’ve died should be straight-forward. But the law is unclear, outdated and could even be putting people off altogether.
“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.
“That’s not right and we want an overhaul to bring the law into the modern world. Our provisional proposals will not only clarify things legally, but will also help to give greater effect to people’s last wishes.”
For more information or to find out more visit: http://www.lawcom.gov.uk/project/wills/
Manitoba introduced the doctrine of substantial compliance in the 1980s. No great harm resulted.
It’s an interesting question to ponder whether “Canada” should follow suit, given that this is a matter of provincial jurisdiction and that there is a lack of uniformity between the provinces. As for BC, it made significant changes to the applicable law with the Wills, Estates and Succession Act, which came into effect in March 2014.
There is uniform legislation on the topic. The Uniform Law Conference of Canada has recently updated the Uniform Wills Act. And Alberta also has recent legislation on the administration of estates.
The ULLC thought in 2002 that the substantial compliance rules would be sufficient to deal with electronic wills, without specific rules about them.
An issue that Ontario got correspondence on was revocation of wills by subsequent marriages. A lot of people having second marriages do not seem to have been advised that the marriage would revoke wills, notably in favour of children of the first marriage. So that should be dealt with, if only to bring the rule to the attention of the parties to second marriages. The ULCC considered three options on that point in 2014 and decided that “entry into a marriage or other spousal relationship does not revoke the will, but on divorce or termination any beneficial dispositions to the former spouse are deemed revoked unless the court finds a contrary intention of the testator”