STEP members input into reform of the law of wills

doctor with patientEarlier this week STEP held the second of three consultation events on the reform of the law of wills. Law Commission representatives Dr Nick Hopkins and Spencer Clarke invited feedback from STEP members in England and Wales on key areas of the consultation including, capacity, statutory wills, formalities, electronic will-making, protecting vulnerable testators and revocation.

At both events, practitioners raised substantial issues relating to the review of the test for capacity to make a will under Banks v Goodfellow (1870), the review of the formality rules, the introduction of court dispensing powers and further possible protection measures for vulnerable testators.

Some particularly pertinent questions that initiated discussion amongst members at the events were:

• How can the Golden Rule (where the making of a will by an elderly or ill testator is witnessed or approved by a medical practitioner who is satisfied of their capacity) be improved?
• Should the Wills Act adopt the Mental Capacity Act 2005 for decisions regarding testamentary capacity?
• Could other professionals such as psychiatrists assess capacity, not just medical practitioners?
• Should the ‘attestation’ requirement be removed?
• Should a dispensing power be introduced to allow judges to override a will formality that has been overlooked, for example, missing witnesses?
• Should the marriage revocation clause be reconsidered or removed?
• Is there scope for expanding the undue influence doctrine, in order to further protect vulnerable testators?
• Could there be more clarity separating the concepts of undue influence, and knowledge and approval?
• Have nominations been taken into consideration, particularly considering they require far less formalities than wills?
• Do domicile and residence issues need to be considered, including how the new rules would operate within other jurisdictions?

Members note that these roadshow type events are invaluable in the consultation process. The Commission, in turn, has been pleased with the response from members at both events.

Following the consultation deadline on 10 November 2017 there will be an analysis stage, after which a report and impact statement will be published by the Commission and subsequently a draft Bill.

Spaces are still available at the Manchester event on 18 October at Mills & Reeves LLP.

If your firm is unable to attend a consultative event, but would like to submit some feedback on the consultation to be incorporated into STEP’s consultation response, please contact emily.deane@step.org by 30 October.

Emily Deane TEP is STEP Technical Counsel

Answering the call for Mental Capacity Act best practice documents

Sean Smith

The Social Care Institute for Excellence (SCIE) is working on behalf of the Department of Health to collate resources that prove useful in practitioners’ work in relation to mental capacity. To that end I am coordinating a response from STEP comprising useful practice materials that will be provided to the SCIE. STEP’s ‘Clarity on Capacity’ event in early September highlighted several key themes that should be addressed to generate best client service in cases of diminished capacity – one of which was knowledge sharing.

In the spirit of sharing to help clients suffering diminished capacity, I encourage STEP members and practitioners associated with the Mental Capacity Special Interest Group  to share best practice materials (be they guidance, online tools or other helpful resources). The deadline for submissions to STEP is Wednesday 5 November with the final collection of documents placed on a dedicated website for wide access.

Diminished capacity poses an ongoing challenge for practitioners and significant stress for clients and their families; sharing practice material now could benefit them in the future.

You can provide material to me at: sean.smith@step.org

Sean Smith, STEP Policy Manager

Time for a Viennese whirl?

In the summer, I flagged up that Austria on 10 July had signed up to the Hague Convention XXXV of 13 January 2000 on the International Protection of Adults, which had then been ratified by the Czech Republic, Estonia, Finland, France, Germany, Scotland and Switzerland.

Last month, less than three after signing, Austria ratified Convention XXXV. It will not, however, come into force there until 1 February 2014.
http://www.hcch.net/index_en.php?act=events.details&year=2013&varevent=328

In Ireland, the Assisted Decision-Making (Capacity) Bill no 83, which will bring Irish capacity law into the 21st Century is making good progress and is likely to come into force during 2014.
http://www.oireachtas.ie/viewdoc.asp?DocID=24147&&CatID=59

This will enable ratification of Convention XXXV which may come into force in Ireland in 2015. Sch.3 to the 2013 Bill sets out Convention XXXV in a similar manner to Sch.3 of the Adults with Incapacity (Scotland) Act 2000 in Scotland and Sch.3 of the Mental Capacity Act 2005 in South Britain.

Many of us think that it extraordinary that although the 2005 Act has been in force in England & Wales since 2007 and that Convention XXXV has been in force since 1 January 2009, the UK still has not got round to ratifying for England and Wales.

The practical difficulties between Scotland and South Britain, involving capacity issues are growing. The acceptance and enforcement of lasting or continuing powers of attorney either side of the border, cause real problems. The UK Ministry of Justice should be ashamed and embarrassed that the law in England & Wales is still half cooked.

Dublin, Edinburgh and Vienna are definitely ahead of London in this particular bake off.

Richard Frimston TEPChair of STEP EU Committee and Co-Chair of the STEP Public Policy Committee