Law Commission 2025 report on modernising Wills
The Law Commission has recently published a report and draft bill on modernising Wills law. This has been initially welcomed by the government who should provide a full response by November 2025. If the recommendations are implemented, this will have wide ranging implications for both preparing Wills and determining their validity.
The report identifies issues with the current rules how these could be addressed. The existing legislation, the Wills Act 1837 is nearly 200 years old and people now have a longer lifespan (but possibly with ill health and decline in mental capacity towards the end of life). This means that updates are needed to this area of law, to reflect the changes in demographics, technology, medicine and society.
The report’s key aims are to:
- support testamentary freedom (the idea that you can leave your assets to who you wish);
- protect testators from undue influence and fraud; and
- increase clarity and certainty in the law.
Some of the main issues and proposed changes are summarised below.
Testamentary freedom: Will formalities
- Wills must currently meet strict signing and witnessing formalities to be valid. If deemed invalid, intestacy laws (or a previous valid Will) would instead apply.
- Proposed reforms would let courts consider other supporting evidence in exceptional circumstances (including electronic, video and sound recordings) where these clearly reflect the testator’s “settled testamentary intentions”.
Testamentary freedom: minimum age
- Currently a testator must be aged 18 or over to make a Will (subject to limited exceptions). This means that children’s estates follow the intestacy rules which usually result in their estate being inherited by both parents equally. This may not be their wish or appropriate in the circumstances.
- Proposed reforms would lower the minimum age to 16. This would allow a terminally ill child to express their wishes where one parent has not been involved in their life. This would also align with the Mental Capacity Act 2005 (“MCA”) where it is assumed that those aged 16 or over have capacity (unless it is shown they do not). A power would also be included allow the court to authorise a Will for a child aged under 16.
Protecting testators: marriage
- Marriage or entering into a civil partnership currently automatically revokes a Will (unless the Will is made in ‘contemplation of marriage’). If a new Will is not put in place, then the intestacy rules apply meaning that the primary beneficiary is the surviving spouse or civil partner. This rule is not widely understood by members of the public and can be exploited by predatory marriage.
- The proposed reforms would change this so that marriage would no longer revoke a Will. The aim is to avoid unintentional intestacies, protect testators from predatory marriage and reflect the different social context in 2025 vs Victorian times. Spouses and civil partners would still have protection through their right to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
Protecting testators: coercion
- Currently Will challenges on the basis of ‘undue influence’ are difficult as the burden of proof rests with the person alleging the undue influence and evidence can be hidden.
- The proposed change would allow courts to infer undue influence in Will disputes where there are reasonable grounds to suspect this. The burden of proof would then shift to those defending the Will to show that undue influence did not occur.
Protecting testators: gifts to witnesses and those who sign a Will on the testator’s behalf
- Currently a gift to a witness or their spouse or civil partner is invalid (although the rest of the Will still applies). However, if someone signs a Will on behalf of a testator, at their direction, this does not invalidate the gift to that person. This is a potential area for financial abuse.
- Proposed reforms would expand existing gift validity restrictions to include witnesses’ cohabitees and also invalidate gifts to those signing Wills on behalf of the testator (plus their spouse, civil partner or cohabitant). The aim is to reduce the risk of abuse, although courts could still allow such gifts if it’s fair and reasonable.
Modernising: formalities for Will creation
- The proposals introduce provisions allowing electronic Wills, subject to specific requirements to ensure safety and reliability. This element was not widely supported by consultees and the draft bill includes only a regulation making power to enable to government to introduce the detail later.
Clarifying: mental capacity
- There are currently two tests: (1) case law which applies when determining whether a person has capacity to make a Will and (2) the MCA test which applies when a statutory Will is made.
- The proposal would confirm that only the MCA test applies and add a new ‘Code of Practice for Testamentary Capacity’ to the MCA.
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If you wish to write or update your Will, contact our private client team on 0800 652 8025 or contact us online.
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