On 16 May 2025, the Law Commission published its long-awaited report, Modernising Wills Law, accompanied by a draft Bill proposing a new Wills Act to replace the Wills Act 1837. The overarching aim is to modernise the law to better reflect contemporary society, strengthen protections for vulnerable individuals, and provide greater clarity and certainty around making a Will.
Background
Making a Will is one of the most significant legal acts a person can undertake. A Will allows individuals (testators) to specify how their estate (everything they own) should be distributed upon their death. It can also appoint guardians for minor children, establish Trusts, include wishes regarding digital assets, and express funeral preferences.
However, the current legal framework is largely rooted in the Wills Act 1837 and subsequent case law, which no longer reflects the realities of modern life. Developments such as the rise of digital technology, increased life expectancy (often accompanied by a decline in mental capacity and health), and the growing complexity and value of estates have rendered many aspects of the existing law outdated.
In response, the Law Commission initiated a project in 2016 to reform and modernise the law of Wills. The Consultation Paper Making a Will was published in July 2017, followed by a consultation period that closed in November 2017. After a temporary pause in 2019, the project resumed in July 2022. A Supplementary Consultation Paper, issued in October 2023, revisited two key issues: electronic Wills and the current rule that marriage or civil partnership revokes an existing Will. That consultation closed in December 2023.
The final report, Modernising Wills Law, and the accompanying draft Bill were published in May 2025.
Key recommendations from Modernising Wills Law Report
The report contains 31 recommendations. Below are the most significant...
Electronic Wills
The formality requirements for making a valid Will have remained largely unchanged since 1837. These do not accommodate electronic Wills, and the validity of such under the current law is unclear.
The Law Commission recommends formally recognising electronic Wills and introducing additional safeguards to ensure they offer equivalent protection against fraud and undue influence.
Testamentary capacity
The test for whether a person has the mental capacity to make a Will is currently based on Banks v Goodfellow, a case dating back to 1870. However, the Mental Capacity Act 2005 (MCA) provides the current test for whether an individual has the mental capacity to make a decision in many other areas of their life – this covers a broad range of financial and welfare decision which presumes that a person has capacity unless it is shown they do not. The MCA also applies when the Court of Protection is determining whether a person lacks capacity to make a Will themselves.
The report concludes that having two tests surrounding whether an individual has the mental capacity to make a Will is unprincipled and confusing and they have recommended that the test set out in the MCA should apply to all assessments of testamentary capacity. A Code of Practice should also be introduced, and anyone professionally preparing or assessing Wills should be required to follow it.
Marriage and Will revocation
Under current law, marriage or civil partnership automatically revokes a Will unless it was made in contemplation of that marriage. Many people are unaware of this rule, which can result in unintended disinheritance and undermines testamentary freedom.
Moreover, the report identifies their concern over the current law is being exploited for the purpose of enabling predatory marriage, which is when someone marries an individual, who is often elderly or lacks mental capacity, as a form of financial abuse. This results in the spouse inheriting all or most of the testator’s estate under the intestacy rules.
The report recommends abolishing this rule. Doing so would protect individuals, especially the vulnerable and better reflect contemporary relationships where marriage is not always a pivotal change.
Undue influence
Challenging a Will on the grounds of undue influence currently requires proving coercion - a high threshold, especially when evidence is largely circumstantial.
It has been identified that due to the current law, it is too difficult to challenge a Will on the grounds of undue influence. It has been recommended that where undue influence is alleged, and that there is evidence to provide reasonable grounds, a court would be able to infer that undue influence. This would therefore place the responsibility for the burden of proof being on the person seeking to prove the Will to satisfy the court.
Recommendations have also extended to gifting in a Will, specifically those who are cohabitants of witnesses or those who sign on the testator’s behalf where there is a clear conflict of interest. Currently, where a gift has been left to a person who witnessed the Will, or to the witness’s spouse or civil partner, the gift will not take effect (although it does not invalidate the Will). Whereas those who sign a Will on behalf of the testator (in their presence and with authorisation from the testator) and have been left a gift, the law states that this does not invalidate the gift. It is also worth noting that the current rule on witnesses only apply to gifts to them or their spouse or civil partner and does not extend to a person who is cohabiting with them. The Law Commission has recommended that the rule for invalidating a gift in a Will to a witness, or to their spouse or civil partners, should be extended to: the cohabitant of a witness; a personal who signed the Will on behalf of the testator; and the spouse, civil partner or cohabitant of a person who signed the Will on behalf of the testator. It also notes that the court should have the power to save a gift if it considers it just and reasonable to do so.
Dispensing power
Currently, if a Will fails to meet strict formality requirements, it is invalid - even if the testator’s intentions are clear. This can result in estates being distributed under intestacy rules, potentially against the testator’s wishes.
The report outlines that the current law for England and Wales, and its strictness in such circumstances, does not reflect the same as other countries across the world. It has been recommended that courts should gain the authority to validate Wills where the testator’s intentions are clear (in appropriate cases) even if all formal requirements weren’t met.
Lowering the legal age to make a Will
The current minimum age to make a Will in England and Wales is 18. By contrast, in Scotland the age is 12, and in some jurisdictions, courts can authorise minors to make a Will on a case-by-case basis.
In England and Wales, when a child dies their estate is distributed in line with the rules of intestacy, which often results in their estate going to both of their parents. In exceptional cases, this can go against a child’s wishes for example if only one parent has played a part in their life. The Law Commission has therefore recommended that the legal age to make a Will should be lowered to 16. This would align with the law on mental capacity under the Mental Capacity Act 2005 which governs questions of mental capacity for those aged 16 and over and assumes that people from this age have capacity unless it has been established otherwise. It also states that in exceptional circumstances and where appropriate, the court should have the power to authorise a child that is under the age of 16 to make a Will.
Rectification
The rectification of Wills is currently set out in section 20 of the Administration of Justice Act 1982, this allows the court to correct a Will where it fails to carry out the testator’s intentions due to a clerical error or when the failure of the person who drafted the Will to understand the testator’s intentions.
At present, the court cannot rectify a Will where the testator or drafter intentionally chose language which did not have the meaning or effect they intended - this is often referred to as drafting errors. The result is that the court can rectify a Will where the wrong words were inadvertently used but not where it was deliberately used. It has been observed that this can result in unfair outcomes due the remedy being dependent on the mindset of the individual drafting the Will opposed to the intentions of the testator.
The report recommends that courts would be able to correct Wills that fail to reflect the testator’s intentions due to drafting errors, provided the formal process was otherwise followed. This differs from dispensing powers which will assist where there has been a failure to comply with the required formalities of making a Will.
Draft Bill for a new Wills Act
The Law Commission has prepared a draft Bill that consolidates and modernises Wills legislation. The Bill implements the proposed reforms and restates unchanged provisions in updated language. Obsolete provisions from the Will Act 1837 have been removed.
What’s next?
Following the Law Commission publishing its report and drafted Bill, Sarah Sackman KC MP, Minister for Courts and Legal Services has provided a statement on behalf of the Government.
In this she states: “As these recommendations illustrate, the reforms proposed by the Law Commission are significant and wide ranging. They deserve detailed consideration. The Government recognises that the current law is outdated, and we must embrace change, but the guiding principle in doing so will be to ensure that reform does not compromise existing freedoms or protecting the elderly and vulnerable in society from undue influence”.
Further announcements from the Government are expected following detailed review of the report.
Conclusion
The Law Commission’s Modernising Wills Law report represents a pivotal step in aligning Wills legislation with the realities of 21st-century life. By introducing provisions for electronic Wills, harmonising mental capacity assessments, and protecting vulnerable individuals from undue influence and unintended consequences, the reforms aim to create a more accessible, just, and flexible framework for testamentary decisions.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
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The information published across our Knowledge Base is correct at the time of going to press.
