A will is an important document. It sets out how people choose to distribute their possessions after they die.
And yet it’s thought that 40 per cent of people who die every year haven’t made a will. That’s more than 200,000 people annually who don’t get to choose where their lifetime’s possessions end up.
Our job at the Law Commission is to keep the law under review and recommend reform where needed. Over the past eighteen months we’ve been looking at wills and think the law is unclear, outdated and could even be putting people off writing wills altogether.
Medical professionals play a big role in the current process. If a lawyer is not certain whether a client has capacity to make a will, they seek a medical opinion. And the ‘Golden Rule’ from a High Court ruling stipulates that a medical opinion should always be sought in respect of elderly clients.
We think that’s a problem. First, because it equates age with mental incapacity, saying that checks are required ‘however difficult or tactless it may be’. And secondly, it overlooks the potential role of other professionals, such as social workers, in assessing capacity.
So, in a consultation launched today, we’ve provisionally proposed the introduction of a code of practice to provide guidance on when, by whom, and how a testator’s capacity should be assessed. We want to know if medical practitioners think the code would be useful and, crucially, what you think the code should contain.
But that isn’t the only problem we found in the law when it comes to mental capacity and wills. Currently we are governed by a 19th century judgement which is not only unclear – it significantly pre-dates modern understandings of mental health.
We think the law should be brought in line with the test set out under the Mental Capacity Act 2005 so that it reflects 21st century medicine. That would also mean that people are presumed to have capacity unless the contrary is shown.
We think that will not only bring benefits to people making a will, but should also make it much easier for medical and social care professionals to play a role in assessment.
Capacity assessments are decision-specific and those related to will-making will require specific aspects of a person’s understanding to be tested; for example, whether a person understands the extent of his or her estate. However, the familiarity that medical professionals have with the core principles of the Mental Capacity Act will be helpful.
Sometimes people need help to make a will. In our consultation we consider a formal scheme to support those who would not have the capacity to make a valid will unaided. We’ve seen supported decision-making schemes work via advocates – who may help patients with diminished capacity to make decisions for themselves – so ask would that work for wills too?
A will can be used to express wishes about what happens to our body after our death, and it’s partly because of that we think children should also be allowed to make wills. The current age requirement, 18, is inconsistent with the age at which children can consent to medical treatment.
And there is increasing recognition that many people under the age of 18 are competent to make decisions on matters that directly affect themselves. That’s why we’re proposing reducing the age of testamentary capacity to 16, and are considering whether a system could be introduced to allow younger children to make a valid will.
The law around wills needs to be brought 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.
The full paper and a summary are available at http://www.lawcom.gov.uk/project/wills/ and the consultation closes on 10 November. We welcome views.
Nick Hopkins is law commissioner for property, family and trust law and a professor of law at Reading University
Very sensible. But it should be made clear that any medical opinion sought should be private and not from the NHS GP.