By Isobel Mann
Borneo Martell Turner Coulston
THE Law Commission has published a consultation on the law relating to wills in response to changes in technology. If introduced, they would be the first changes introduced since Victorian times.
The Wills Act of 1837 has remained largely unchanged since it came into force. The consultation considers a range of issues including: the possibility of electronic wills; whether the age of testamentary capacity should be lowered from 18 to 16 and possible reform of the law around testamentary capacity to bring it in line with the test for capacity under the Mental Capacity Act 2005.
One of the most important issues also being considered as part of the consultation is whether the law can do more to protect vulnerable testators from fraud or undue influence. It highlights that testators can be vulnerable as a result of age, illness or social isolation and that they need to be protected from financial abuse.
Under the current law the circumstances in which a will can be set aside for undue influence are very narrowly construed. For a claim to succeed the influence exerted by the accused must amount to coercion, such that it overbears the testator’s own discretion and judgement and has the effect of overpowering the testator’s own wishes without actually changing their mind. The burden of proof is high and it falls on the person challenging the will to prove undue influence.
The Law Commission proposes the creation of a statutory doctrine of testamentary undue influence. It suggests two potential forms that such a doctrine could take; structured (modelled on the doctrine of undue influence which applies today to lifetime gifts) or discretionary (where the court has the power to presume undue influence if it is satisfied that it would be just to do so in all the circumstances).
But would such proposals really give greater protection to vulnerable testators? Many practitioners are concerned that the current law does not cater for a growing class of vulnerable testator; that is, those with a fluctuating mental impairment (such as dementia) who are pressured or manipulated by friends or family to change their will.
Having dementia (or another mental impairment) does not automatically render a person unable to make a valid will. The test for testamentary capacity to make a will is well established. It is essential that the law should place a great deal of emphasis on testamentary freedom and should enable testators who have varied and sometimes complex mental health needs to exercise their testamentary freedom as far as possible.
Sadly, it is not uncommon for there to be disputes between potential competing beneficiaries after a testator’s death. For example if a client has a progressive mental disease and other health problems and is reliant on others for their care, it doesn’t necessarily prevent them from making a will. A practitioner may be satisfied that despite fluctuating capacity being a feature of their day to day life, under the current law the Client probably had the requisite testamentary capacity. If that is the case then a challenge to the will on this ground would fail.
However, that client may well have had pressure from a child who is seeking a bigger share of the estate (justified by the fact that they have (they believe) made significant personal sacrifices for their parent). That may have influenced the client to change their will. But conduct such as pressure or even manipulation by friends or family in such a case is unlikely to meet the high bar of the current test for undue influence. Yet the client has arguably induced to change their will due to a combination of factors that include their vulnerability, fluctuating capacity, and influence from their child.
In circumstances such as these there is some force in the contention that the power of the child’s influence combined with the client’s general capacity problems and vulnerabilities has led to them substituting another’s wishes for their own. Whilst undue influence and/or capacity claims are unlikely to succeed here on their own, the effect of the influence (which arguably falls short of coercion) together with the fluctuating mental capacity denies the testator the exercise of his testamentary freedom.
It is likely that practitioners in this area of law will see an increase in real cases with similar facts. According to statistics from the Alzheimer’s Society, there are 850,000 people with dementia in the UK, with numbers set to rise to two million by 2051. Dementia and other illnesses that affect understanding and communication can make people more susceptible to pressure and manipulation. The lack of clear provision in the law in its current form to adequately protect a vulnerable client finding themselves in the position described above from exploitation is a potential problem that the Law Commission’s consultation, if enforced, will address.
For more information, contact Isobel Mann on 01604 622101 or at
