It’s time to bring will formalities into the 21st century

Law is not known for being simple. In fact, one of the most common critiques of English law is its unnecessary complexity. That being said, huge strides have been made in recent years to bring many legal mechanisms into the 21st century. To address the difficulties faced in terms of witnessing a will in the coronavirus pandemic, the Wills Act 1837 was amended to allow wills to be witnessed virtually, using video conference software or other means. In April 2022, no-fault divorce became the norm, simplifying the process for divorce and reducing the possibility of conflict. Similarly, to other common legal processes like taxes, divorce can now also be filed online in a new and streamlined process.

When someone dies however, there is still a lot of red tape to contend with. Many people who have not made a formal will can leave their loved ones in difficult and potentially contentious situations.

  • On average, the costs of a will dispute that proceeds to a final trial can escalate to sums often substantially in excess of £100,000

Let’s Talk About the End

Shockingly, in polling conducted by our team, only 33% of British adults had spoken to those closest to them about their wishes for after they die. It’s part of why we’ve launched our Let’s Talk About the End campaign, in collaboration with end-of-life charity The Anne Robson Trust, to encourage people to be brave, and have those difficult discussions with family and loved ones.

Call for policy changes

But there is a need for policy change as well. There are many cases where it is easy to tell what someone wanted to happen to their estate after their death, but their wishes cannot be fulfilled due to the absence of a formal, valid will. It might be the case that someone has given instructions to a solicitor to make a will, but if this has not been signed before their death, it remains invalid, regardless of the circumstances. Alternatively, someone might have written down their wishes but, if there were not at least two witnesses present, this also would not be considered a legally binding will. The pandemic was the most obvious example of this, when it was much more difficult to sign legal documents or be present with witnesses.

  • Inheritance disputes are on the rise by 65%

The impact of current formalities

These formalities can have a negative impact on families, such as leaving unmarried partners without a home or source of income in the absence of a will, which then forces a family’s estate to pass through the rules of Intestacy. This is why there is a need to streamline the will-making process.

Andrew Wilkinson, our Head of Inheritance Disputes, said: “As contentious probate lawyers, we sadly see all too often how difficult it can be for families when things go wrong after a loved one passes away, and where disputes could have been avoided had proper conversations taken place. We also see situations where someone dies having clearly expressed their wishes, but those wishes are not implemented because of a failure to comply with strict legal processes.

“The current law does not allow the court to dispense with the formalities of a will, irrespective of the circumstances, even when it clear that the terms of their will (or the intestacy) rules do not reflect their wishes. We think that such a provision should be brought into law, but even that is not the answer alone. Everybody should have a will in place.”

The law should work for the people it serves at all stages of their life. In the 21st century, we should be able to use the benefits of digital technology to make will-making more easily accessible. In addition, in appropriate circumstances, the law should be able to dispense with the formalities for a will in order to accommodate clearly stated wishes. Making these changes will simplify the process, removing burdensome probate issues from the shoulders of bereaved families.

It’s worth noting that the Law Commission’s project on reforming the laws around wills has re-started.