Picture this, you're a world-famous sports star, who's already amassed earnings of half a million pounds, and you're only set to earn more with lucrative contracts and sponsors. However, you're yet to reach 18 years of age and as such any will that you may wish to make won't be valid and you have relatively little control, legally, as to what happens to your estate upon your death.
This is the position for Luke Littler, 17 years old, professional darts player and current Premier League Darts champion who's already earned over £500,000. Whilst it might not seem to be a widespread issue, there are more and more youth sports professionals with significant earnings, and with the rise of social media, e-sports, and streaming there are increasing numbers of teenagers earning large sums.
Despite this the law remains strict, under section 7 of the Wills Act 1837, that no will made by anyone under the age of eighteen shall be valid, except for members of the armed forces and sailors at sea. The reasoning behind this is that it's deemed that under the age of 18, you don't have the legal capacity to make a will, despite being able to hold a driving licence and work a full-time job. Once you've reached 18 and have capacity then in order to make a valid will, it must be in writing, signed by the testator and in the presence of two witnesses. Notably, during the Covid-19 pandemic, permission was granted for the remote witnessing of wills, however, as of 1 February 2024 this is no longer permitted.
Interestingly, the Wills Act it does not stipulate the type of signature that must be made. Whilst we haven't yet reached the stage where an electronic signature will suffice, the testator’s fingerprint is an acceptable signature, as was confirmed recently in Otitoju v Onwordi. In such an ever-growing digital world, it raises the question of when, if ever, will an electronic signature be accepted. Especially considering the widespread use of platforms such as DocuSign in business transactions and the general increased use of technology in our lives. This is something which the Law Commission has been consulting on for quite some time and they're currently in the final stages of analysing their responses. There are of course concerns which must be addressed, as those who are potentially vulnerable to undue influence, pressure and fraud may be at an increased risk with bringing the process further online.
Within the same consultation, the Law Commission also proposed lowering the age of testamentary capacity to 16, noting that in the law surrounding medical and social welfare, 16 and 17 year olds are often recognised as capable decision makers. Along with the points made above, children may have assets arising out of a personal injury settlement and wish to control who receives their property after their death. This is especially prevalent in cases with estranged parents, carers and foster parents where, for example, one of the parents may be estranged yet under intestacy the child’s estate would be split equally. These issues could potentially be mitigated by lowering the age of testamentary capacity.
On the other hand, where the child does not have capacity, the current approach could continue where the Court of Protection has ruled in favour of a foster family (Re CJF) and a mother, who as a result of her carer role, was financially dependent upon her daughter (Boutte v Rose). Whilst this is inevitably more cumbersome on the claimants, it appears that just results have been reached and if the age of testamentary capacity was lowered then this could in turn free more resources to handle cases such as these.
It's certainly possible that in the not so distant future we may be seeing more and more calls, and possibly a change in the law, surrounding the age of testamentary capacity and electronic signatures. The Law Commissions’ supplementary consultation period closed at the end of 2023, and we await their final report in early 2025.
If you wish to discuss your will in further detail, please speak to your usual Mills & Reeve contact or get in touch with one of our specialists.
Our content explained
Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.