Modernising wills law – The Law Commission’s May 2025 report

The Law Commission’s report, issued on 16 May 2025, proposes modernising the law relating to wills in England and Wales. It is proposed that the Wills Act 1837 be repealed and replaced with a new Wills Act, and a draft Bill has been published along with the report. The report follows a public consultation in 2017 and supplementary public consultation in 2023.

Aims

The proposals have the following aims:

• clarifying the rules relating to wills where necessary;
• modernising an antiquated area of law dating back to Victorian times;
• bringing the law into line with societal, medical and technological changes;
• maintaining testamentary freedom (the freedom to leave your estate to the people or charities you wish to benefit);
• protecting people making wills from risks, including undue influence and fraud; and
• introducing new laws that are accessible and future-proof, so they remain relevant as technology continues to advance at speed.

What are the Law Commission proposing to change?

Formality requirements for a valid will

Current law: to be valid, a will must comply with section 9 of the Wills Act 1837. In essence, a will must be made in writing, signed by the person making the will (the testator) or at their direction, in the presence of two witnesses who must add their signature in the presence of the testator.

Proposed change: the Law Commission propose introducing a “dispensing power” enabling the court to dispense with the need for these formalities in exceptional circumstances where they are satisfied that the person’s intentions have been clearly evidenced. The court will be able to consider evidence including sound/video recordings and digital records of the person’s intentions. Similar powers exist in jurisdictions including Australia, New Zealand and Canada.

Minimum age to make a will

Current law: under section 18 of the Wills Act 1837 you must be over 18 to make a will (with an exception for soldiers or sailors on active service).

Proposed change: to reduce the minimum age to make a will to 16, and to allow the court to authorise a child under 16 to make a will in appropriate circumstances (for example, if they are terminally ill).

Rules relating to rectification of wills

Current law: the courts have power to rectify wills where there is a clerical error which means the will has an unintended consequence. This power does not extend to mistakes where the will drafter deliberately drafted the will in a certain way, but the words used in the drafting did not give effect to the testator’s wishes.

Proposed change: to extend the courts’ powers of rectification to enable a will to be rectified where the language used in the will does not give effect to the testator’s intentions (due to a lack of understanding by the will drafter).

Effect of marriage on a will

Current law: marriage automatically revokes a will (section 18 Wills Act 1837) unless the will states that it is made in contemplation of marriage.

Proposed change: to abolish this rule. The capacity requirements for marriage are lower than those required for wills and capacity is not always properly assessed before marriage. There are recent cases where predatory individuals have taken advantage of this situation and married elderly, vulnerable people, subsequently benefiting from their estates.

Law relating to undue influence

Current law: it is notoriously difficult to prove a will was made by a person under undue influence (as by its very nature undue influence often takes place behind closed doors, involving someone close to the testator) and there is a high evidential burden on those who seek to challenge wills on this basis. The difficulties in proving undue influence mean that challenges to wills are often brought instead on the basis of lack of “knowledge and approval” – the requirement for a testator to properly understand the content of the will and its effects.

Proposed change: to allow the courts to infer undue influence where there is evidence giving reasonable grounds to suspect it. If the court infers undue influence, the burden of proof will be on the person seeking to prove the will that there was no undue influence. It is also recommended that the requirement for knowledge and approval be included in the new Wills Act, so that knowledge and approval is clearly differentiated from undue influence.

Rules relating to witnesses and wills signed at the direction of the testator

Current law: if a will is witnessed by a person who is also named as a beneficiary of the will, or their spouse, the gift in the will to that person is invalid. A cohabitant of the witness would, however, still benefit from any gift made to them in the will. In circumstances where wills are signed by another person at the testator’s direction, the signer may still benefit under the will.

Proposed change: to extend the rule invalidating gifts in wills to the cohabitants of witnesses. Also, to introduce a rule under which anyone signing the will on the testator’s behalf (or their spouse or cohabitant) cannot benefit from the will. The Commission also recommends that the court should have power to “save” gifts that fail under these rules if it is just and reasonable in the circumstances.

The test for capacity to make a will (testamentary capacity)

Current law: the test for testamentary capacity is set out in the case of Banks v Goodfellow (1870) LR 5 QB 549. Testators must understand the nature of making a will and its consequences; have an awareness of the extent of their property; be aware of who they would be expected to benefit from their will; and be free from any delusions which would significantly affect their ability to make a decision.

Proposed change: to replace the Banks v Goodfellow test with the test set out in the Mental Capacity Act 2005 – the test currently used to assess capacity for matters other than will-making. A person must be able to understand the information relevant to the decision they are making; to retain that information; to use or weigh the information as part of the decision-making process; and to communicate the decision. This proposal is made for reasons of clarity; the Law Commission’s view is that there is no legal reason for there to continue to be two capacity tests existing concurrently. The Mental Capacity Act 2005 also includes as a principle the presumption that a person has capacity unless it is shown that they do not. The Law Commission recommends that this presumption should apply in the context of wills. It is also recommended that a Code of Practice on testamentary capacity should be issued under the Mental Capacity Act 2005.

Electronic wills

Current law: the current laws do not include provision for wills to be made electronically. The government did allow remote signing and witnessing of wills temporarily during the Covid-19 pandemic (although these were not electronic wills); this ended on 31 January 2024.

Proposed change: provision to make electronic wills formally valid, subject to specific requirements ensuring they are safe and can be relied upon. The Law Commission report states that a reliable system must be used that: links the testator to the document signed, at the time it is signed; identifies the will so it is clearly distinguished from other copy documents; and protects the will from being changed or destroyed except by the testator (or someone else at the testator’s direction).

What happens next?

The Government will now review the Law Commission’s recommendations and draft Wills Bill. An interim response should be provided by the responsible Minister within six months (by November 2025), and a full response is expected within the next 12 months (by May 2026). It will then become clear if the Government will take the Commission’s proposals forward.

If implemented, the proposals will significantly change the landscape for wills and probate law. Clearly, these historic laws should be brought up to speed with current society and need to be ready to adapt to new technology. The proposals have been very thoroughly considered and the streamlining of the laws relating to testamentary capacity, undue influence and rectification are likely to be welcomed by those working in the sector. The potential impacts of the proposed dispensing powers, and how electronic wills are going to work in practice, are less clear. The law will continue to evolve as technology advances, and it will be critical to continue to ensure that the right protections are in place for both testators and their beneficiaries