The Law Commission has published its latest report on Wills and Private Client reforms. This isn’t the first time the Commission have tackled this field, the first time being in 2017 which resulted in a Consultation Paper. Now, not much off a decade later, their latest report and draft Bill have been laid before Parliament for review. Evolution in this field isn’t fast. The Wills Act, from 1837 is still the backbone of this area.
How the Commission’s considerations and report might impact Family Law specifically, is considerable. They have considered, not least, whether marriage should continue to revoke a will. This ties with the Government’s wish to protect people from ‘predatory marriages’ and the malicious acquisition of legal rights of another. We are not the first to be alert to this. Canada’s states have steadily been reversing laws that automatically revoked wills when people married or formed civil partnerships.
Getting married or forming a civil partnership revokes a pre-existing will and it is a fair assumption that the general public largely have no idea that this is the case. In much the same way that our clients are often surprised that divorce revokes any will that they may have made previously.
Marriage/civil partnership and wills are areas that have societal assumptions attached to them: Common Law spouses do not exist and wills can’t really be written on the back of a napkin. Intestacy, the legal rules that apply to those who have died without a will, are rigid and won’t imagine what people would have wanted. Nor will they guard against those bent on taking advantage of the kind, vulnerable (and wealthy).
Sadly, we have seen many couples divorce, effectively having been railroaded into marriages that, at the time, they agreed with. While we can help them in divorce, what if they had died during the marriage, their previous will having been revoked?
An abuser, who has convinced their partner to marry, can inherit everything under current law. Their victim’s will would have been revoked on marriage and if their estate is below a certain (but considerable) sum, their children stand to receive nothing. This is a huge loophole for abusers to exploit and victims unwittingly to fall foul of.
We agree that a change in the law to prevent a controlling and manipulative surviving spouse from inheriting everything (by Intestacy rules) should apply.
Whole estates, automatically inherited by a surviving spouse, leaves a family with a traumatic legal battle on their hands, if they wish to challenge it. That is a mountain to climb. Changing the law that automatically revokes previous wills on marriage/CP is a positive protection and guard for those who assume that their will remains in force. Common sense and the law should be tied like this.
The Law Commission’s report does also recommends extending protections preventing gifts being made to witnesses of wills, or their spouses ,to guard against undue influence, manipulation and conflict of interest. It proposes that the cohabiting partners of witness should also be precluded from receiving gifts. That is of course right when increasing numbers choose not to marry (estimated at 6.8m people in England & Wales). But this is just a nod to wider necessary legal evolution.
What the report does not do is make recommendations that benefit or protect unmarried partners on death of the other. Intestacy rules could be extended to protect cohabiting partners. The Commission do not recommend any such changes. It is hoped that this consideration will form part of the Government’s 2024 manifesto commitment to strengthen the rights and protections for cohabitees as part of a wider and formal consultation on how to reform cohabitation law. Mandatory will-making is one potential option but one that the Commission did not investigate.
What remains clear, is that public awareness on the subject of wills and the legal consequences of death, marriage and divorce, remain as important as ever. These aren’t exciting topics for the general public, but they affect us all at some point. Making a will is crucial for everyone and simple to do.
We support the Commission’s recommendations, intended to protect the vulnerable. Wills are a legal area in need of modernisation and this is one firm step in the right direction. We hope however that it forms part of a broader evolution that acknowledges the true make-up of modern families in a modern world.
Sebastian Burrows is a Managing Partner at Stowe Family Law