Wills Act 1837 : Is it obsolescent?

Michael Sladen considers whether or not there is a case for reform of the
Wills Act 1837
(taken from Isssue No 15 – April 2001

 

It is generally accepted throughout the civilised world that men and women have the right to dispose of their property when they die; thus, as the illustrious Gibbon points out, prolonging the dominion of the testator beyond the grave. In a sophisticated society the will-making process is controlled and delimited by law. In England and Wales such law is both statutory and non-statutory; the latter is embodied in decisions of the courts and develops naturally over the years. So far as statutory law is concerned, our present main source is the Wills Act 1837, as amended. This statute covers the start of Victoria’s great reign; it is not the oldest effective statute but it is felt in some quarters to be outdated. Modem testators should, instead, have something more consonant with ‘cool Britannia’ and the third millennium1. Other commentators2 think that the 1837 Act is unsatisfactory for technical reasons. Are these views sufficiently cogent to justify replacing the Act with a text that is more efficient, up to date and ‘user-friendly’?

The Law Reform Committee Report in 1980
In considering this proposition one is helped considerably by the fact that the ground was covered not so long ago by the Law Reform Committee in Report No.22 The Making and Revocation of Wills 1980 Cmnd 7902. For this Report the starting point was the principle that there were two objectives in the formal rules for the making of wills. The first objective was to ensure that a document or documents genuinely representing the testator’s intentions should be treated as valid; the second objective was to invalidate documents that do not represent such intentions. Generally, it was felt that the element of formality or ceremony in will-making set out in s 9 of the 1837 Act was a vital factor, which not only served to achieve the second of the above objectives (tending to frustrate forgery and the use of undue influence) but would also inhibit abrupt and over-hasty action by an intending testator.

Current requirements
Whilst a will does not have to be a formal document, professionally drawn3 the statutory requirements for the execution of all wills provide a guarantee that the contents do represent the genuine wishes of the testator. Personally, 1 think that such requirements are sensible and should be retained. As already mentioned, they are to be found in s 9 of the 1837 Act as amended by s 17 Administration of Justice Act 1982. As it stands, this section seems to me to be both succinct and clear enough in its wording.

Here I part company with Borkowski, op cit who thinks that s 9 is ‘hardly a model of clarity’. It is true that the law reports contain many decisions on the precise meaning of ‘writing’, ‘by his direction’ and so on, but disputes of this kind are bound to occur in marginal cases. it would be difficult to find a form of words that could never be challenged and argued about. It is better to set out the requirements briefly and clearly than to try to make them cover all possible situations, which may be infinitely diverse.

Other provisions relating to the will-making process are contained in s 7 of the 1837 Act ‘No will made by any person under the age of eighteen years shall be valid’; and in s 11, which preserves the right of soldiers ‘on actual military service’ and ‘any mariner or seaman being at sea’ to make informal (even oral) wills. This section is explained and amplified by the Wills (Soldiers and Sailors) Act 1918. The age restriction in s 7 does not apply to the ‘privileged wills’ made in accordance with these provisions.

Before producing its Report the Law Reform Committee initiated a wide-ranging consultation process and, as a result, found that

A substantial majority of those who gave evidence thought that the present law, particularly as to the making of wills, was satisfactory and that, therefore, little or no change was required. The reasons given were that the law is well known to practitioners and to the public and has stood the test of time well.4

In other words, if a thing works, don’t fix it.

Probate Registry Survey
Concurrently with the consultative process, the Probate Registry was carrying out a survey of wills submitted for proof in 1978; this survey showed that, over a given period5,   40,664 wills were admitted to probate and 97 were rejected. Of the 97 turned down for failure to comply with s 9, 91 were home-made. These figures suggest that, in England and Wales, the will-making process was working well enough – in 1978. The procedure was well-established and seemed only rarely to give rise to a problem – when it does, an aggrieved party may now find solace in enforcing the doctrine set up in White v Jones6 . My guess is that, were a similar survey to be carried out at the present day, the results would not differ greatly from those revealed in 1978.

The fact that the procedure is understood and works well in practice does not mean that it is the best available. Can we learn from our neighbours?

Scottish requirements
North of the border, for instance, a Scot may make a holograph will – that is, a will in the testator’s handwriting, signed by him or her but not witnessed. Such a holograph will, when submitted for probate, now has to be supported by an affidavit or affidavits as to its authenticity – see the Requirements of Writing (Scotland) Act 1995. Incidentally, a testator in Scotland can make a valid will from the age of 12. An attested Scottish will requires only one witness. Across the English Channel, the most common form of will in France is the testament olograph; the alternative is the testament authentique, a much more formal affair made before either two notaries or one notary and two witnesses7 .

Holograph, Privileged and Notarial Wills
The Law Reform Committee rejected the introduction of holograph wills; most witnesses who gave evidence to the Committee thought that there might be confusion between a holograph will and a draft will – I am not too clear how it was thought that this could come about. More cogently, witnesses thought that the holograph will provided no safeguards against forgery, insanity and undue influence. Notarial wills were also turned down – some witnesses even going so far as to prefer the alternative of making recourse to a solicitor compulsory for the purposes of making a will.

Whether views have changed in the twenty years or so since the Law Reform Committee’s Report No. 22, 1 do not know; I suspect that most solicitors and others involved in the drafting and execution of wills are still reasonably content with s 9. The reform of the law of wills is probably not very highly placed on the Law Commission’s agenda. I agree, of course, with Robin Towns, op cit, that a consolidating statute is desirable and this, at least, would enable us to get rid of early Victorian legislation.

At the same time, the opportunity could be taken to consider some changes in testamentary law. I wonder whether we still need the ‘privileged will? Evidence was given to the Law Reform Committee that the fighting forces found it a useful facility see, e.g., Re Jones [1981] Fam 7. But 1 am not sure myself that this interesting relic of the Roman testamentum militareis essential in this day and age8. Today’s soldiers are surely more sophisticated than their forebears and, would guess, are fully briefed about the desirability of making a will at some stage in their careers. s.15 is another provision that might be reconsidered. A blanket embargo on gifts to witnesses (subject to the provisions of the Wills Act 1968) seems rather arbitrary. Could this embargo be modified to the extent of creating a rebuttable presumption that a witness cannot take under a will, if he is also a significant beneficiary?

Age
Is it necessary to confine the will-making process to those of 18 and over? As already noted, in Scotland a youngster of 12 may make a will (though one wonders how often such a right is exercised). 12 does seem a very tender age at which to consider dispositions on death but at 16 one may get married (with consent, it is true) and I think one could sensibly consider reducing the testamentary birthday to 16. At the other end of the spectrum, should there be a maximum age beyond which a will could not be made except with the benefit of a doctor’s certificate?

Substantial Compliance
Further thought could be given to the introduction of the doctrine of ‘substantial compliance’ into the new Act; it is already law in some Commonwealth and USA jurisdictions. Broadly, it operates so as to save a will that is technically defective, provided the court is satisfied that the document genuinely represents the testator’s last will and testament. In other words, the finding of a formal defect in a will does not automatically exclude it from probate but leads to further enquiry. The Law Reform Committee did consider this doctrine but did not recommend its adoption, fearing that it would lead to uncertainty and ‘litigation, expense and delay’. Such disadvantages already arise, of course, where there is doubt about compliance with the formalities required in making a will.9     Use of the substantial compliance doctrine would simplify matters in such cases by making it unnecessary to decide on which side of the frontier between validity and invalidity a disputed will fell.

Execution of a will away from professional scrutiny causes trouble from time to time, as inGray v Richards Butler10, even where the right sort of advice has been given to the testator about the procedure. One particular stumbling block is the requirement that at some stage when the will is signed by the testator (or after) the testator and both witnesses must be present at the same time. Is this absolutely necessary, one wonders? In fact, do we need two witnesses? Other jurisdictions make do with one, sometimes none at all.

Opportunity?
No doubt there are other aspects of the 1837 Act that could be amended and brought up to date. At the same time one could bring all the associated legislation under one roof i.e. theWills Act 1963, the Wills Act 1968 and the relevant provisions of the Administration of Justice Act 1982. A truly magnificent gesture would be to sweep into the bag all legislation pertaining to inheritance on death – that is, not only the statutory law already mentioned but also the intestacy legislation and the Inheritance (Provision for Family and Dependants) Act 1975. One could call the result the Inheritance Act 2002 (or some year in the not too distant future).

I say nothing about electronic wills; no doubt they will appear but I am not competent to discuss ways and means.

Michael Sladen LLB, FCIB was for many years with the Midland Bank Trust Company and has also practised at the Bar. He has also taught, and is the author of books and articles on the subject of wills and trusts

1 See, for example, Robin Towns’s interesting article in New Law Journal of 26th March 1999, p 445.
2 For instance, Andrew Borkowski in Textbook on Succession p 114‘`he statutory requirements lack precision in some crucial respects…..`
3 For the very acme of informality see Re Murray [1963] CLY 3621 – a disposition scribbled on a piece of cardboard during a game of snooker was admitted to probate.
4 Report, op cit, p 1.
5 Precisely what period was covered by this survey, I am not sure.
6 [1995] 2 AC 207
7 See European Succession Law ed David Hayton (1988)
8 A personal memory: when I was a soldier (this was some time ago) I carried about with me (as one was bound to do) my Army pay-book, AB64. This contained a blank page, upon which one could write ones will – I never used it.
9 e.g. Couser v Couser [1996] 1 WLR 1301
10 [2000] WTLR 141