Adam Blenkinsop and James Hopgood, from Steeles Law’s dispute resolution team, look at what plans to review the law of wills could mean for the industry.

The Law Commission has announced plans for a comprehensive 3-year review of the law of wills, amid concerns that the present legal regime, which derives almost entirely from the 19th century, has become overly complex and deters individuals from making a will. At present, about 40% of the population doesn’t have a will.

While the Law Commission’s proposals to investigate a number of issues, including the formalities for making a valid will, the rectification of wills, and mutual wills are encouraging, the proposed review of the law of testamentary capacity will be the most welcome.

The quarterly court statistics underline the need for reform. In 2013, a total of 97 contested probate cases were heard in the Chancery Division of the High Court.  While this represents a marked decrease from the 185 cases heard in 2007, contested probate cases can nevertheless be costly and complex affairs. Recently, Mummery LJ compared Hawes v Burgess [2013] EWCA Civ 74 to Dickens’ fictional Jarndyce v Jarndyce, noting that: “The civil procedure rules and the efforts of legal advisers have not dissuaded these parties from the dissipation of the whole of the deceased’s estate in costs and legal fees.”

With an ever-ageing population, it’s only right that the Law Commission should investigate whether the leading case of Banks v Goodfellow (1870) LR 5 QB 549 has become out of step with modern societal and medical developments. While passions can often run high in contentious probate cases, it’s hoped that the fruits of the Law Commission’s intervention will add clarity and certainty to the law in this area, and ultimately reduce the number of estates completely exhausted by legal fees.

In this regard, the recent case of Simon v Byford [2014] EWCA Civ 280 provides welcome clarification of the current law, by confirming that testamentary capacity is a test of understanding, not of memory. The alternative would have been to disenfranchise those with relatively minor, and often age-related, memory problems such as mild cognitive impairment, from being able to express their wishes.

Although Simon v Byford was decided under the common law test in Banks v Goodfellow, it is encouraging that the court considered there to be a distinction between memory and the ‘potential to understand’. While at times this can be a rather fine distinction, it appears to be fully consistent with the modern approach of the Mental Capacity Act 2005.

The Law Commission should keep in mind that to unduly impugn the validity of a will is to risk depriving a person of the final expression of their autonomy. Of course, the law must provide some safeguard, but only to ensure that the will is a product of the testator’s independent thought. The Commission needs to ensure that its proposals respect the fundamental principle espoused by the Mental Capacity Act 2005, namely that a person must be regarded as having capacity, unless and until the contrary can be established.

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