Changes to Private Client law that you may have missed

Wills

• In October 2023 the Law Commission resumed its consultation on the reform of Wills, focusing on two specific areas:
  • Enabling electronic Wills – aimed at modernising the procedure for making a Will and keeping pace with technological advances. The consultation looks at whether the process could be fully digitised, any risks and whether the formalities for creating a valid Will under the Wills Act 1837 would need updating.
  • The rule that a marriage or civil partnership revokes a Will – concerns over predatory marriage continue to grow and abolishing this law would offer greater protection to vulnerable testators.

The responses to the consultation are currently being analysed with a final report and draft Bill enacting the Law Commission recommendation expected early next year.

• A carry over from the pandemic, the law that allowed the remote witnessing of Will signing expired at the end of January. The Government confirmed that this option was only ever a last resort, in circumstances that no longer apply.
• Whilst unlikely to directly impact our day to day practice, there was also a Government consultation in December 2023 on storage of original Wills submitted in probate applications. Currently, all Wills and documents submitted in support of probate are kept indefinitely.  The proposal is to modernise the system, converting older Wills to digital format, reducing costs and resulting in a quicker more efficient request service.

Powers of Attorney

• The Powers of Attorney Act 2023 received Royal Assent in September 2023, aiming to modernise the process for making a Lasting a Power of Attorney by fully digitising it – making it faster, easier, more accessible and secure. Concerns have been raised across the legal profession regarding the safeguarding of vulnerable individuals via the certificate provider, and how this role will work digitally. The online platform is currently being worked on by the Office of the Public Guardian with no launch date as yet. A paper process will remain in pace for those who require it.

 Estates

• The Law Commission have set out an intention to consult, over the next three years, on how we deal with the body of a loved one when they die. There are three strands to this:
  • Solutions to the issue that burial space is running out and legalities over what can be done with cremated ashes;
  • regulation of new methods of dealing with a body after death, such as human composting (click here to read our previous article on this topic); and
  • whether to amend the law, so that wishes expressed in a Will about what should happen to the testator’s body after death, become legally binding.

It is the third strand that would have the biggest impact for us, affecting Will drafting, and we will be keeping our eye on how this develops.

• In 2023 the Probate Registry reported the highest level of probate applications since 2006 but despite seeing record output in the final quarter of the year, delays are still significant. In January, we saw a revision to the application procedure, aimed at preventing probate applications from being submitted prematurely before receiving confirmation that the inheritance tax has been paid (which results in the application getting ‘stopped’ in the system).  Instead of submitting the IHT421 to HMRC for stamping, practitioners will not be able to submit a probate application without a unique code issued by HMRC.

Trusts

• A Government consultation on the transparency of land ownership by trusts has recently ended. The consultation sought views on widening access to trust information where land is owned, aimed at tackling the abuse of trust structures and making it harder for corrupt individuals to operate.  The public interest in this information and benefit of transparency must be balanced with an individual’s right to privacy – sharing trust information publicly may go against the very nature and reason for creating it, for example where the beneficiaries or minors are vulnerable.

Watch this space… we will keep you updated in future editions of any developments or changes coming into force.

With changes to the law inevitable in the near future, it is important, now more than ever, to seek professional advice when considering your personal affairs or those of your family.  We can provide you with peace of mind that you’ve got it right.

Wondering how the above changes may impact you? – please get in touch with our Wealth Preservation team and we will be happy to advise you.