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Kerry Sawyer, Solicitor at Lamb Brooks LLP considers the Law Commissions proposal to modernise the formalities for making a Will.

 

If  you  do  not  have  a  valid  Will  at  the  date  of  your  death  the  law  governs  how  your  estate  is  distributed  and who can deal with the assets in your estate after your death and this may not be the way you would have wished.

 

Individuals are often under the misapprehension that if they do not make a Will that everything will automatically pass to their spouse but this may not be the case. In addition, under the law, some individuals are not recognised; for example unmarried partners.

 

By making a Will, you can be sure that your estate will be distributed in a way that reflects your wishes.

 

In order for a Will to be valid, the Will Maker must be of sound mind. The Will must be in writing and be signed by the Will Maker in the presence of two independent witnesses 18 years of age or older. Each witness must attest and sign the Will in the presence of the Will Maker. Subject to limited exceptions, the Will Maker must be 18 years of age or older to make a valid Will.

 

The Law Commission has last week set out proposals to change the above rules for making a valid Will where the Will Maker has made clear their intentions in some other form; for example in an email or text message. The Law Commission has given an example where this may be acceptable; this being where a victim of a car crash does not have a Will. It is the Law Commission’s intention that in circumstances where an individual does make their wishes known through some other form (i.e. if they are a victim in a car crash) the family could apply to the court to have those communications recognised as a formal Will. In those circumstances, it would be down to the judge to decide whether the communications are recognised as a Will.

 

Although the Law Commission are attempting to take a step towards modernising the law on Wills, at this stage it is merely a proposal and it is my view that the law on Wills which has been around for 180 years is unlikely to change and if it does, the above will likely only apply in extenuating circumstances.

 

For this reason, it is my advice that you make a Will setting out your wishes whilst you are able. This will not only ensure your wishes are carried out on death but it will give certainty for your family/friends or partner at an extremely stressful and vulnerable time.

We can help you draft your Will. If you would like further information about making a Will, please contact our Private Client team by telephone on 01256 844888 or email enquiries@lambbrooks.com

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.