19:11, July 12 379 0 theguardian.com

2017-07-12 19:11:03
Legal age to write will should be lowered to 16, says Law Commission

The age at which anyone in England or Wales can write a will should be lowered to 16, the Law Commission has recommended – which is likely to highlight legal confusion over digital assets.

In a report on updating inheritance laws, the body that advises the government on law reform says Victorian-era legislation has not kept pace with changing patterns of family life, the increased incidence of dementia and an ageing population.

More people than ever have sufficient property to pass on after their death but as many as 40% of adults have not made a will, the study points out.

One main proposal is that since 16-year-olds may marry, join the army, leave school, consent to sexual activity, live alone and make their own medical decisions, they ought to be allowed to decide to whom they leave their possessions. “Young people must be protected but age limits should not inhibit their autonomy unnecessarily,” the commission suggests. At present the “testamentary age”, as it is formally known, is 18 in England and Wales.

“Under no circumstances can a person below the threshold age make a will,” the report says. “As a result, there may be 17-year-olds who have left school, live alone, have jobs and parental responsibilities but cannot make a valid will. That sort of anomaly is sufficient reason to re-examine the age of testamentary capacity.”

In Scotland children over the age of 12 can make valid wills; in the US state of Georgia, the lowest age is 14. The 16-year-old limit operates in the state of Louisiana and in British Columbia, Canada.

The need for reform was demonstrated, the commission says, by the extraordinary case of a 14-year-old girl suffering from terminal cancer, identified only as JS, who sought permission last year from the high court to have her body cryogenically preserved in the hope that she could be brought back to life at a later date.

After lengthy legal proceedings, the judge found for her mother, who allowed the child’s dying wishes to be completed. “However,” the report notes, “if JS were able to make a valid will, she could simply have appointed her mother as her executor and no dispute would have arisen.”

Allowing more teenagers to leave a will is bound to raise questions over how online possession can be bequeathed to friends and family. “Many of what are thought of as digital assets are not assets at all in the traditional sense,” the report cautions. “For example, iTunes libraries are merely a suite of single-user licenses that expire on the user’s death – the user never owns a copy of the songs. Hence, while I can leave my collection of CDs to a beneficiary … I cannot leave my digital music library.

“... In addition to potentially being difficult to access, testators may find it difficult to work out which digital assets they can pass by will and which ones they cannot.”

Although the Law Commission concludes the law governing the succession of digital assets falls outside the scope of this report, it is asking – as part of its consultation – for evidence relating to transfers of online and digital material.

“A consistent policy towards digital assets is required, rather than a ‘piecemeal’ solution that would apply only in respect of death, and only where the person has made a will,” the study states.

In overhauling inheritance laws, the commission also suggests softening strict formality rules where intentions are clear, introducing a new mental capacity test which takes into account modern understanding of conditions like dementia and the use of electronic wills.

The Law Commissioner, Professor Nick Hopkins, said: “Making a will and passing on your possessions after you’ve died should be straightforward. But the law is unclear, outdated and could even be putting people off altogether.

“Even when it’s obvious what someone wanted, if they haven’t followed the strict rules, courts can’t act on it. And conditions which affect decision-making – like dementia – aren’t properly accounted for in the law.”