Join Philip Evans in asking the Law Commission to review the law relating to Wills & testamentary capacity

 In Gill's Blog

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‘Is the Wills Act 1837 fit for purpose’ I asked back in May 2013 as part of my online webinar for LiPs Legal. What do you think? The Law Commission needs your views as practitioners at the coal face on which areas of law need reform.

The ageing population might be living longer but are presenting difficult assessment conditions for medical and legal practitioners in balancing the decision as to whether or not a particular person has testamentary capacity.

The Courts have been unhelpful producing a number of conflicting decisions criticising lawyers and medics alike. Mr Grayling has chosen not to regulate Will writing and we are not clear as to whether or not digital Wills can be valid.

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All in all the current state of the law relating to Wills and testamentary capacity is unsatisfactory for everyone, in particular the client consumer.

The public, encouraged by the Legal Services Board Consumer Panel, believes all Wills should be cheaply priced and few people are prepared to acknowledge the level of skill and ability needed to deal with the older person and the vulnerable person. This needs not only practitioners who are properly trained but who have time to handle the complex assessment processes. This requires the services of both doctors and lawyers to be properly priced and to work together in harmony.

I was pleased to read Stephen Mayson’s recent paper on ‘Restoring a Future for Law’ and agree with him that somehow society has lost its way in as much as the law should be about enabling the proper public participation in the law. To do this in my opinion we need clarity of law, appropriately trained and regulated practitioners and innovative services which are properly priced.

A few people who seek legal advice in relation to Wills need only straightforward help. The ability to deal with these clients over the web in a valid way means the service could be competitively priced. Clear law to determine which Wills (and other services) can and cannot be delivered over the web would help the public access Will writing services. To be satisfied that the quality is fit for purpose the provider would need to be regulated.

Many private client solicitors spend lots of time with clients without charging them the actual cost of doing so in order to properly protect them and to provide an appropriate service. Experience shows that those with skill take great care in assessing testamentary capacity and where they are unsure or circumstances dictate that medical advice is sought careful instructions are given to their counterparts in medical services. However, far too often they find that the GP refuses to act or the consultant charges a huge sum or the time delay is unacceptable such that everyone suffers including most importantly the client – for an unfair example of this simply read the case of Feltham v Bouskell [2013] EWHC 1952.

All this makes the law an ass and it is vital that practitioners support Philip Evans, of Graham & Rosen Solicitors in Hull, in asking the Law Commission to include in its 12th programme of law reform the law relating to Wills and testamentary capacity. The Consultation ends on 31 October 2013. See http://lawcommission.justice.gov.uk/consultations/2441.htm and http://www.lawgazette.co.uk/law/a-generational-duty/5038044.article#comments_form

The Wills Act 1837 is not universally fit for purpose and could not envisage our digital age. The Courts have created an unacceptable degree of uncertainty as to what the Will practitioner and the medical practitioner need to do and to what standard in order to correctly determine the ability of a client to make a Will. The Government has forgotten that the system of law needs to be peopled by appropriately regulated and trained professionals who must charge reasonable fees to ensure the public gain the right advice to the highest standard. The consumer bodies focus only on simplicity and not vulnerability and complexity.

Let’s all follow Philip’s example and complete the online form on the Law Commission’s website (find the online form at www.lawcom.gov.uk). The Law Commission need practitioners who work with the law every day to put before it the problems with the law and explain how important a review is to sort out the unsatisfactory position we are in.

Please act now before it is too late.

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