Unsurprisingly given that almost two centuries have past since the Wills Act of 1837 was signed into English and Welsh law, it has become hopelessly out of step with modern society.
On May 16, 2025, the Law Commission, the independent body that reviews and recommends reforms to the law, delivered a landmark report and accompanying draft Bill that promises to overhaul this antiquated framework.
The proposals, if enacted, represent the most significant shake-up in wills law since the Victorian era, aiming to bolster testamentary freedom, protect testators, and inject much-needed clarity and certainty into the process.
Let’s delve into the key proposals that could redefine how we plan for the future:
1. Embracing the Digital Age: The rise of electronic wills
Perhaps the most headline-grabbing proposal is the introduction of electronic wills. In an increasingly paperless world, the current law’s strict requirement for physical signatures and witnesses feels anachronistic.
The Law Commission’s Bill paves the way for wills to be created, signed and stored digitally. Crucially, this isn’t a free-for-all; stringent safeguards are envisioned, including secure digital signatures, verified identity checks and robust storage systems to prevent tampering or fraud.
While the exact “reliable electronic system” will require further detailed regulation, this move acknowledges the pervasive role of digital technology in our lives and seeks to future-proof the law for generations to come. This also opens the door for remote witnessing, a practice temporarily allowed during the pandemic but now set to become a permanent feature.
2. Modernising mental capacity: A unified approach
The current test for testamentary capacity – whether someone is mentally capable of making a will – harks back to the 19th-Century case of Banks v Goodfellow. This old common law test has caused inconsistencies, running parallel to the more modern and widely used Mental Capacity Act 2005 (MCA).
The Law Commission recommends that the MCA 2005 test, which applies to other areas of law, should become the sole standard for assessing testamentary capacity.
This change aims to provide greater clarity and consistency, ensuring the law aligns with contemporary medical understanding and better supports individuals with fluctuating conditions like dementia, ensuring their “will and preferences” are respected.
3. Rethinking revocation: Marriage and predatory marriages
Under existing law, getting married or entering a civil partnership automatically revokes any previous will, unless it was made in contemplation of that union. This often overlooked rule can lead to unintended consequences and, more alarmingly, has been exploited in “predatory marriages,” where vulnerable individuals are coerced into marriage for financial gain.
The Law Commission proposes to abolish this automatic revocation rule. Instead, a will would remain valid unless expressly revoked by the testator, even after marriage or civil partnership. This significant change aims to protect vulnerable individuals and ensure a person’s carefully considered wishes are not inadvertently overturned.
4. Stronger protections against undue influence and lack of knowledge and approval
Proving undue influence – where someone was pressured or coerced into making or changing a will against their true intentions – is notoriously difficult, often relying on circumstantial evidence.
The Law Commission’s proposals seek to strengthen protections for vulnerable testators by introducing clearer statutory guidance on undue influence and knowledge and approval. This includes a potential shift in the evidential burden of proof where there are reasonable grounds to suspect undue influence, placing the onus on the person seeking to uphold the will to demonstrate its legitimacy.
This aims to reduce ambiguity and empower courts to better assess whether a will genuinely reflects the testator’s wishes.
Similarly, the draft Bill seeks to clarify the “knowledge and approval” requirement, ensuring testators fully understand the contents and effect of their will.
5. Greater court discretion: Upholding true intentions
Currently, strict adherence to formality requirements (such as proper signing and witnessing) is paramount. Even minor errors can render a will invalid, frustrating a testator’s clear intentions.
The Law Commission recommends granting courts greater dispensing powers. In exceptional circumstances, if there is strong evidence of a testator’s clear and genuine intentions, courts could be allowed to accept wills that do not strictly meet all formal rules.
This “dispensing power” would provide a much-needed degree of flexibility, particularly for homemade wills or those where minor technicalities might otherwise invalidate a person’s final wishes.
6. Lowering the minimum age for making a will
The current minimum age for making a will is 18. The Law Commission proposes reducing this to 16. This aligns the law with other areas where 16- and 17-year-olds can make significant decisions and grants greater autonomy to younger individuals, particularly in cases of terminal illness where they may wish to dictate the distribution of their assets.
The Bill also suggests the court should have the power to authorise a child under 16 to make a will in exceptional circumstances.
What Next?
It’s important to remember that these are proposals from an advisory body. The Government has welcomed the report and will now consider the recommendations in detail before responding formally.
While no immediate action is required by individuals, the draft Bill serves as a timely reminder for everyone to review their existing wills and ensure they accurately reflect their current intentions.
If enacted, these reforms will represent a significant leap forward, bringing the UK’s wills law firmly into the 21st century and providing greater certainty and protection for future generations.
This article is for general information only and does not constitute legal or professional advice