The Law Commissions Report on Modernising Wills

Trainee inheritance disputes solicitor, Fiona Cursons, takes a look into the Law Commissions Report on modernising Wills.

The Law Commission released their report on the suggested reforms to Wills on 16^th May 2025. Their report included a draft bill which makes suggested changes to the current Laws regarding Wills.

To date, the main piece of legislation concerning Wills in the UK is the Wills Act 1837. The Law Commissions report suggests that this legislation alongside any amendments to it be repealed. In its place, they have prepared a draft Will bill which incorporates its proposed changes.

The main changes are as follows:

Electronic wills

The Law Commissions draft bill suggests that there should be provision for electronic wills, which fulfil certain requirements, to be valid. This includes a system which links the testator to the document signed, at the time of signing, identifies the will separate to other copy documents and protects it from being changed or destroyed except by the testator or someone directed to by the testator.

Minimum Age

It has been proposed that the minimum age to create a will is lowered to age 16 and to give the court the ability to authorise a child under 16 to create a will in certain circumstances such as in the case of terminal illness.

Formality Requirements

The Law Commission are proposing to give the Court power to be able to dispense with the need for the standard will formalities in special circumstances where there is clear evidence of the testator’s intentions. The Court will be able to consider video evidence and digital recordings of a person’s intentions.

Marriage

Abolishing the rule that marriage revokes a will unless it is made it contemplation of that marriage. This is intended to protect those who are vulnerable being taken advantage of in this situation.

Testamentary Capacity

Banks v Goodfellow is the current test for testamentary capacity. The Law Commission suggests that for continuity and completeness this should be replaced with the Mental Capacity Act 2005 which is the legislation which determines mental capacity for matters other than making a will. The Law Commission also thinks that the Mental Capacity Acts presumption of capacity should apply to wills. It has recommended a code of practice be produced under the act for testamentary capacity.

Rectification of Wills

This proposed change will extend the courts powers to rectify wills where clerical errors have led to unintended consequences. It will not apply to mistakes where a will has been drafted in a particular way but can be used where the words do not give effect to the testator’s true intention.

Undue Influence

As the evidential threshold relating to undue influence is so high, challenges to wills are often brought on other grounds. It is proposed that the courts should have powers to infer undue influence where there is evidence that gives reasonable suspicion of it.

If it is inferred by the court, the burden will be on the person proving the will to evidence that there was no undue influence.

Extending rules relating to witnesses

The Law Commission has proposed that the rule invalidating gifts to beneficiaries who witness a will should be extended to include their spouses/cohabitee’s. This is proposed to be extended so that anyone who signs the will on the testator’s behalf (or their spouse/cohabitee) cannot benefit either. In conjunction with this, the Law Commission has proposed that the court should have power to save gifts that fail due to the above if it is just and reasonable.

Next steps

The Government now has 6 months to provide an interim response to the Law Commissions report. Its full response may not arrive for up to 12 months by which point it will become clear as to whether the government intends to take matters further forwards. Noting the advancement of technology since the current Wills Act was introduced, it is hoped that the government will strongly consider the proposals put forwards.