Will-writing reforms proposed

Signing Last Will and TestamentThe Law Commission of England and Wales is holding a public consultation on reform of the law of wills. The current law, largely derived from the Wills Act 1837, is understandably antiquated and requires an overhaul. The Commission notes that 40 per cent of people in England and Wales die without leaving a valid will, which often results in application of the unfavourable laws of intestacy.

Background

Significant changes in society, technology and medicine have prompted the Commission to review the wills law. Some of these factors include:

• the ageing population;
• the greater incidence of dementia;
• the evolution of the medical understanding of disorders, diseases and conditions that could affect a person’s capacity to make a will;
• the emergence of, and increasing reliance on, digital technology;
• changing patterns of family life – for example, more cohabiting couples and more people having second families; and
• with more people having substantial amounts of property, clarity about what happens to it after death being more important than ever.

Objectives

The Commission’s objective is to modernise and improve the current, archaic wills law. Some of the key focus areas include:

More flexibility: This would enable courts, when it is clear what the deceased wanted or intended, to dispense with the formalities of a will. If a particular formality, such as having two witnesses sign the will, had been overlooked or incorrectly administered, new ‘dispensing powers’ would enable the court to validate the will.
Capacity review: It may be necessary to improve the test for capacity to reflect the modern understanding of medical conditions such as dementia. This review could result in the introduction of a new test specifically linked to these conditions, where the testator makes a will with specific new guidance and support.
Statutory guidance: It may be necessary to introduce statutory guidance for doctors and other professionals when assessing whether or not a person has the required mental capacity to make a will. This could reduce the need for lengthy, costly litigation.
Undue influence: New rules should be considered to protect testators from being unduly influenced by another person. In particular, elderly and vulnerable testators should be better protected from fraud.
Testamentary capacity: Lowering the age at which a will can be made from 18 years old to 16. A child of 16 or 17 might have significant assets that he or she may not want to pass to an estranged parent under the rules of intestacy.
Electronic wills: It may be necessary to review how technology can be adapted in relation to making a will; it may become easier, cheaper and more convenient to a testator if they are able to do so electronically, though some practical challenges will need to be considered.
Ademption: The Commission would like to encourage discussions as to whether or not the ademption rules need to be reviewed. The rules could be improved to better align the testator’s wishes and intentions with the operation of the law.

Consultation events

STEP is working closely with the Law Commission and the Association of Contentious Trust and Probate Specialists (ACTAPS) on this consultation project. STEP is hosting free consultation events in London, Newcastle and Manchester, and STEP members are invited to provide feedback to Commission representatives.

Consultation event schedule:

London, 13 Sep
Newcastle, 18 Sep
• Manchester (tbc)

The consultation closes on 10 November 2017, and the Commission’s conclusions, along with its final recommendations and a draft Bill, are expected to be published in early 2018.

Emily Deane TEP is STEP Technical Counsel

STEP – the reality

STEP logo iconThere have been a number of recent press articles about the role of STEP, a leading professional body, in the wealth management industry. Some of these articles have presented a highly distorted view of STEP and the activities of our members.

STEP members, known as TEPs, spend their professional lives helping families plan for their futures: from drafting a will or advising family businesses, to helping international families and protecting vulnerable family members who may have mental capacity issues or other forms of disability. With around 20,000 members worldwide, TEPs are the acknowledged specialists in giving advice to families in these areas.

Some TEPs focus on servicing very wealthy families, often with a range of international interests, who need expert advice to manage their affairs to ensure all tax and legal requirements are met in multiple countries. Most TEPs, however, are engaged in helping ordinary families deal with everyday problems. All are committed to the high technical and professional standards that STEP promotes and insists on from all its members.

Internationally, STEP has an important role to play in improving professionalism among all those working with families in areas such as inheritance planning and the care of vulnerable relatives. We are thus proud to be actively involved in helping raise standards in jurisdictions where there have to date been few, if any, equivalent professional bodies.

STEP also works constructively and transparently with a range of policymakers. As acknowledged global experts in their fields, STEP members have an important role to play in ensuring that policy development is informed by the practical experience of professionals working in the relevant area. STEP’s responses to official consultations are all publicly available on the STEP website (see www.step.org/consultation-tracker/1).

George Hodgson is Interim Chief Executive of STEP

STEP attends European Parliament meeting on vulnerable adults across Member States

senior man looking at passpor
STEP members Richard Frimston TEP and Anneke Vrenegoor TEP attended the European Parliament (EP) on 20 April to hear expert presentations on vulnerable adults across Member States (MS) by Dr Ian Curry Summer and Pietro Franzina (see presentations below).

The occasion followed continued debate in the EP regarding the difficulty that MS are encountering to ensure the protection of their senior citizens.

Each state has its own legal system in place in order to safeguard its senior citizens, however, with an increasing number of people on the move, the applicable law and jurisdiction is becoming more complex.

MEP Joëlle Bergeron, Robert Bray, Isabelle Bardy, Francisco Ruiz (JURI secretariat) and the two experts were in attendance, and STEP member Dr Fiona Murray described the presentations as ‘clear and aligned’. MEP Bergeron broadly concurred with the findings of the experts and reiterated the need for EU legislation for an EU certificate for recognition and protection of vulnerable adults.

STEP is monitoring the issue of EU legislation across MS.

Richard Frimston TEP and Kathleen Cunningham TEP will also be presenting a session on vulnerable adults, and the global legal approaches being adopted, at the STEP Global Congress in Amsterdam on 30 June – 1 July.

 

Emily Deane TEP is Technical Counsel at STEP

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

Lessons from ‘Clarity on Capacity’

Sean SmithIn London on 11 September 2014, over 80 practitioners, including both legal and medical professionals, came together to discuss the issue of testamentary capacity at the sold out event ‘Clarity on Capacity’, hosted by STEP’s UK Practice Committee in conjunction with the Mental Capacity Special Interest Group.

Following on from an article in the March 2014 STEP Journal which illustrated how recent court cases had provoked debate as to the suitability of the ‘golden rule’,[1] ‘Clarity on Capacity’ examined the duties of will writers to ensure that all reasonable steps have been taken to satisfy themselves that the testator has testamentary capacity. The event also explored how to reduce the risk of a will later being challenged on grounds of capacity.

The day comprised a mixture of presentation, panel debate and group work, beginning with an introduction to the capacity assessment tool being developed by the Mental Capacity Special Interest Group, which aims to assist will writers in ensuring practitioners deliver a robust assessment of capacity.

During the panel discussion, leading experts debated topics ranging from the interaction between the Mental Capacity Act (2005) and Banks v Goodfellow (1870)[2] to the practicality of securing timely medical advice in relation to capacity assessments.

Much of the day was devoted to a workshop format, with groups discussing questions related to best practice, collaboration with the medical profession, retention of evidence, appropriate charges and costs, and validity issues other than capacity.STEP_mental capacity_FINAL edit copy z3

Key themes to emerge from ‘Clarity on Capacity’:

Collaboration

Medical and will writing professions need to work together more effectively.

Suggestions from attendees as to how this could be achieved included joint qualifications/training from STEP and relevant medical bodies. Delegates also spoke about the need for a simple way to locate qualified medical practitioners in their local area, with charges for services clearly outlined.

Guidance

Practitioners would benefit from practical guidance in a number of areas to ensure best practice and consistency of approach.

For example, guidance to ensure comprehensive note taking. Another suggestion was guidance from the medical profession so that will preparers were more alert to the potential medical issues of clients. This chimes with the issues raised in a recent STEP webinar in which James Ward TEP and Dr Nori Graham of Red and Yellow Care discussed fluctuating capacity, particularly when the client experienced intermittent capacity without an overt change in demeanour.

Learning from others

Practitioners should communicate with each other to share experiences and best practice.

In addition, in developing its guidance, STEP could learn from collaborative actions taken by other sectors, for example, the Pre-Action Protocol for Disease and Illness Claims.[3]

Through sharing their experiences and insights, all participants contributed to delivering a successful ‘Clarity on Capacity’ event. This spirit of collaboration is essential to address the key themes that came out of the event and ensure the needs and wishes of clients are met.

Sean Smith, STEP Policy Manager

[1] http://www.step.org/exceptions-golden-rule

[2] (1869-70) LR 5 QB 549

[3] http://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_dis