Under present laws which date back to 1839, a Will needs to be written and signed by the person making the Will (the Testator) and must be signed by two witnesses in order for it to be valid.
Enshrined in law is a clear, though, as suggested by some – and I agree – somewhat archaic language specifically intended to protect someone who lacks capacity. The case of Banks v Goodfellow 1870 provides,
“no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property.”
Given that the understanding of dementia as a progressive and degenerative disease of the brain was only discovered to be the case just after the turn of the 20th century, it’s little wonder that some find the use of phrases like “insane delusion” offensive in today’s world. It is however, essential to have a test that assesses a person’s capacity, and a modern test for capacity is contained in the Mental Capacity Act 2005 (MCA 2005), which uses more accepted language as follows:
1 (2) A person must be assumed to have capacity unless it is established that he lacks capacity…
2 (1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or the brain…
3 (1) For the purposes of Section 2, a person is unable to make a decision for himself if he is unable:
to understand the information relevant to the decision,
to retain that information,
to use or weigh that information as part of the process of making the decision, or
to communicate his decision (whether by talking, using sign language or any other means
Further in DL v A Local Authority & Others  the Court held that the doctrine of inherent jurisdiction provided a safety net to ensure adults were guarded from coercion, undue influence and duress even where they have capacity under the MCA 2005.
What then of the new proposals that a person would be able to use voicemail and text messages to make their Wills? The Law Commission, arguably rightly, suggests that the current legacy system should be brought up to date with the digital age. The proposals include the possibility for county and high court judges to decide “on the balance of probabilities” whether a recording or (text) note is an accurate summary of a person’s wishes.
In a perfect world The Commission’s proposals would seem to make sense, especially given that so many display an alarming lack of enthusiasm to make provisions for what happens when they are no longer here, whether that be simply due to lethargy or a fear of discussing the inevitable is a moot point. Unfortunately we don’t live in a perfect world, and my concern is that the new proposals raise the fear of vulnerable adults being strong armed into making “their wishes” clear in in somewhat unclear circumstances.
The current process of making a Will, in writing, with the presence of 2 witnesses attesting to the Testator’s signature, and where the Testator has sensibly taken legal advice, the drafting Lawyer affirming their capacity in adherence with the provisions set down in Banks v Goodfellow (1870) and MCA 2005 offers the kind of protection the law intended.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
Nino Cuffaro – Wills, Trust and Probate
T: 020 7183 1485