07 Oct 2020

A will as IVF consent and wider considerations on consents and nominations

A Scottish court has considered whether or not a will satisfied the requirements of a consent for the purposes of IVF, which raises some wider considerations.

A recent case has considered whether or not wording in a will amounted to giving effective consent by the deceased for the storage and use of his sperm to conceive a child by IVF. The will needed to be considered as it had been discovered the day before the man’s death, at which point he was unconscious, that the forms of consent he had signed did not cover the use of sperm in IVF treatment. The difference related to consent for the creation and storage of embryos.
What the court was considering was whether or not the wording contained in the will amounted to consent for the use of the deceased’s sperm for IVF in terms of the Human Fertilisation and Embryology Act 1990.

A case about consent forms and not wills

The 1990 Act has a few requirements for an “effective consent”. It must be in writing. It must be signed by the deceased. It must specify the purposes of use and be clear it includes consent to the creation of any embryo in vitro. There must be certain counselling and information provided. The consent must not have been withdrawn.

The deceased had received the necessary counselling and information, so the court needed to consider the other factors. The court determined that the will was sufficient to constitute effective consent as it was in writing, signed by the deceased and had not been withdrawn.

The court was clear that the issue was whether or not the wording in the will was effective consent for the purposes of the 1990 Act. The will, according to the court, was doing two things: (1) distributing the deceased’s estate and (2) constituting an effective consent under the 1990 Act. The latter was essentially standalone. It was not the will instructing executors to do something in connection with IVF treatment. Rather, it was recording the deceased’s wishes about IVF and those wishes were coming direct from the deceased… it was their giving of effective consent.

It perhaps of interest that the court noted the wording in the will “is the sort of provision that would only sensibly be made by a man contemplating his death in the near future; and seeking to make his wishes clear.” (my emphasis) It does raise at least the prospect that a different view might have been taken had the will been made many years before death notwithstanding it contained the same wording. It is therefore not wording a will drafter would often be including. The circumstances and state of health of the man would appear to have had a role in this being a competent and sufficient way to express consent for 1990 Act purposes.

Helpfully the clause in the will was widely drawn. This was important as the wording needed to be clear that it was consent to the creation of any embryo in vitro.

While the wording in the will was found to be sufficient, the court was considering the question of whether or not the will “(alone or in combination with other material)” (my emphasis) was sufficient. The “or in combination” again underlining that the wording in the will as a consent for 1990 Act purposes was a standalone issue: not a ‘wills’ matter, as such. Ordinarily a will would not be interpreted by introducing factors outside the corners of the document.

Wider considerations: pensions, death in service and beyond?

The court’s decision was based on the wording in the will amounting, in its own right, to an effective consent for the specific purposes of the 1990 Act. The same reasoning could apply to other situations. In particular situations where nominations and expressions of wishes should be given for determining how death benefits are distributed and held.

Perhaps the most interesting would be for ‘nominations’ under the pension death benefits rules. If someone has failed to ‘nominate’ the ‘right’ people, might an attempt to be made to argue wording in a will amounts to an effective ‘nomination’? As with a 1990 Act consent, it would depend on the specific wording used in the will.

While making a standalone ‘nomination’ is very much to be recommended, there could be past cases where the fullest options were not available under a pension due to the lack of a ‘nomination’. Could they be re-examined to consider if wording in a will should have been accepted as sufficient for the purposes of a valid ‘nomination’?

There is also the issue of a nomination/expression of wishes getting ‘out of sync’ with a will. Could a later wording adopted in a will oust an otherwise valid and current nomination/expression of wishes?
Beyond death benefits, it could be that a will or wording within a will is treated as a consent or other legally significant factor. As with the IVF consent, the question will be whether or not the wording amounts to the e.g. consent for the specific purposes of that particular consent.
For help and advice on wills, succession, death benefits and related issues get in touch with Alan Eccles: alaneccles@bkf.co.uk