In this month’s update we consider:
- What to do when an executor loses capacity,
- A review of recent cases dealing with mutual wills, and
- Responses to the ILM / Farrer & Co survey of members on the questions which will be at the heart of the forthcoming supplementary consultation on reforming the law around the making of wills.
We hope you find these articles interesting and informative.
What to do when an executor loses capacity
In this article, Joseph de Lacey and Caspar Fraser consider how the capacity of an executor is assessed, and how to deal with the tricky situation that arises when an executor loses mental capacity before the grant has issued, or during the estate administration.
A review of recent cases on mutual wills
Henrietta Mason reviews the recent mutual wills cases of Naidoo v Barton, 2023 EWHC 500 Ch and McLean v McLean  EWHC 1863 and considers how these types of claims fit in alongside other legal doctrines in the will disputes sphere.
Joseph de Lacey reports on the responses to the ILM / Farrer & Co. survey of ILM members on will reforms
In the summer we held an in-person discussion forum with representatives from a number of charities to consider the questions which we had been told would be the subject of the Law Commission’s forthcoming supplementary Will Reform consultation, namely:
- Whether Parliament should abolish the rule that marriage revokes a person’s last will, and
- Whether fully electronic wills should be introduced (ie wills that are prepared, executed and sometimes stored online).
Following that event, we produced a paper summarising some of the key points of our discussion. ILM circulated the paper, along with a survey to members, seeking their views on the points raised.
We thought it would be helpful to review the responses to the survey:
- There has been a relatively even split on the question of marriage revoking a will, but on balance more respondents felt that charities should lobby for a change to the rule, so that marriage does not revoke a will.
- Almost all agreed that marriage practitioners should inform those intending to marry of the general rule.
- There was a relatively even split regarding whether fully electronic wills should be introduced, even though all but one respondent thought that it would increase the number of wills made each year and increase accessibility to will making.
- Most respondents thought there was a risk of electronic wills increasing fraud.
The detail of the responses will be helpful for the ILM in preparing its response to the Law Commission’s Supplementary Consultation paper, which, we gather, is on track to be released in the next couple of weeks. We understand that there will be a two-month response period, hence the reason for working with the ILM to release this survey over the summer. Ducks in a row, and all that!
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, September 2023