By Brian Sloan

A perennial dilemma for succession law is how to balance two, potentially competing, considerations: the desire to maximise ‘testamentary freedom’ (the ability to determine the destination of one’s property on death) on the one hand, and the need to protect vulnerable will-makers from the effects of incapacity, coercion and fraud during the will-making process on the other.

For a will to be legally valid in England and Wales, it must satisfy the formality requirements set out in section 9(1) of the Wills Act 1837, meaning broadly that it must be in writing and signed by the testator or by someone on their behalf, in the presence of two witnesses, and it must be intended by the testator to be their will. These formality requirements are intended to serve various functions: they provide reliable evidence of testamentary intent; make it easier to identify a document as a will; create an element of ceremony which cautions testators against making unduly hasty dispositions of their assets; and they help protect testators against undue influence or coercion (1).

A key theme of A Research Agenda for Succession Law (2), on which future research may build, is the idea that such formalities may not be fit for the modern age. This is one of the difficulties with which the Law Commission has grappled in its recently completed Wills project, led by Professor Nick Hopkins (3).

In the modern age, the question of how to balance testamentary freedom against the need to protect vulnerable testators assumes a new dimension with the advent of electronic wills; that is, wills that are simply electronic in form, or that are also advised on and executed via an online digital platform. Electronic will-making, with potentially newly-introduced and bespoke formality requirements, has the potential to make professionally made wills more accessible, by removing the need to travel to speak with a lawyer. But applicable safeguards may be less effective when wills are made electronically (4). 

As well as being largely incompatible with both electronic means of will-making and technological innovations such as blockchain (5), more fundamentally the current formalities also have the potential to stymie testamentary freedom. If a testator unintentionally fails to meet one or more of the formality requirements, their strict enforcement can lead to a will that the testator intended to have, and thought would have, legal effect being declared invalid. One response to this problem, adopted in some jurisdictions, is to introduce a dispensing power enabling a court to dispense with one or more of the formality requirements where an individual’s testamentary intentions are sufficiently clear (6). One inevitable problem with dispensing powers is that they are capable of validating a will that the testator intended to be legally void, for example because they were being pressured into writing the will by one of their named beneficiaries. 

Dispensing powers also introduce a new problem: if the testator did not realise that the document could have any legal effect, they will not appreciate the need to carry out an act of revocation. For why would they? (7)

The hope is that A Research Agenda for Succession Law will inspire new and exciting research in succession law, to help it keep pace with the changing social and economic world order, and to help ensure it serves its most important functions, including the promotion of testamentary freedom, the protection of vulnerable testators, and the provision of clarity and (as far as possible) fairness in the disposition of property on death (8). But a key question remains: insofar as the law gives individuals free choice to determine what should happen to their property when they die (9), how can it ensure that genuine, autonomous expressions of testamentary intent are treated as valid, and at the same time safeguard testators whose hand is forced? (10)

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References:

(1)  J.H. Langbein, Substantial Compliance with the Wills Act (1975) 88 Harvard Law Review 489.

(2) B. Sloan (ed), A Research Agenda for Succession Law. in Elgar Research Agendas. Cheltenham, UK: Edward Elgar Publishing Ltd., 2026. [Online]. Available: https://www.elgaronline.com/edcollbook/book/9781035327584/9781035327584.xml

(3) Ibid, chapter 2 by N. Hopkins.

(4) Ibid, chapter 3 by R. Harding, T. Cockburn, B. Crawford, M. Hall and K. Purser.

(5) Ibid, chapter 4 by F. Hamid Butt.

(6) Ibid, chapter 5 by P. Vines and N. Peart.

(7) Ibid, chapter 6 by J. Brook.

(8) Succession law can also encompass the destination of one’s earthly remains: see ibid, chapter 12 by H. Conway and S. Grattan.

(9) Cf ibid, chapters 8 (by R. Probert), 9 (by A. Sorainen), 10 (by W. Pintens) and 11 (by L. Ho and R. Lee) on the extent to which certain family members or others should benefit from estates other than through the exercise of the individual’s choice.

(10) See ibid, chapter 7 by R. Kerridge on the involvement of beneficiaries in the will-making process.

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Brian Sloan is an Assistant Professor in Property Law and an Academic Secretary of the Faculty Faculty of Law at the University of Cambridge.