The Law Commission has published its recommendations to reform the law of wills in its Modernising Wills Law report, which includes abolishing the rule that marriage revokes a will and support for electronic wills.

Why are the Law Commission recommending reforms to law of wills?

Wills are one of the most important documents a person might sign during their lives. How assets are passed on death depends on whether the person died with a valid will in place, because a will is the primary way that a person can determine what happens to their property when they die.

However, the law surrounding wills is not as clear as it could be. According to the Law Commission, many people are put off making wills altogether and, in some cases, the law is preventing people’s clear wishes about what should happen to their property when they die from being given effect.

The law of wills is old and complex, and is governed by the Wills Act 1837, as well as case law from across the last few centuries. This Report is the first comprehensive review of wills legislation in almost 200 years. This is important because:

• Most people will live longer than their ancestors did, and more people will suffer from ill health and a decline in their mental capacity that are commonly associated with old age.
• The property that the average person owns may be more valuable than it was in the past.
• Documents in electronic form are now far more prevalent than paper documents.

What are the Law Commission recommending?

The aim of the proposed reforms is to modernise the law governing wills to ensure it is fit for purpose in the modern age. The Law Commission have aimed to make recommendations to reform the law so that it better:

• supports the exercise of testamentary freedom
• protects testators, including from undue influence and fraud
• increases clarity and certainty in the law where possible

Some of the key recommendations Modernising Wills Law Report include:

• Marriage should not revoke a will

Once a person makes a will, they can choose to revoke it. However, under the current law a person’s will is automatically revoked if they get married or form a civil partnership. The Report recommends abolishing the rule that marriage revokes a will to resolve the increasing problem of predatory marriage.

• Support for electronic wills

The formality requirements to make a valid will are nearly exactly the same as they were when the Wills Act 1837 was enacted. These requirements have generally stood the test of time. However, the COVID-19 pandemic highlighted the advantage of being able to witness wills remotely. Therefore, the Report recommends that provision should be made for electronic wills but emphasise that they must be secure.

• Clarification on testamentary capacity

The Report recommends that the test for testamentary capacity should be in line with the Mental Capacity Act 2005, as for all other capacity decisions.

• Lowering the age for making wills

The Report recommends children should be able to make wills from 16 as opposed to 18 to align with the law on mental capacity which governs questions of mental capacity for those aged 16 or over.

• Courts can infer undue influence

Currently, if someone wants to challenge a will on the basis that the testator has been unduly influenced, they have the burden of proving it. But undue influence is difficult to prove. In order to provide better protection to testators (and particularly to vulnerable testators), the Report recommends that it should be possible for the courts to infer that a will was brought about by undue influence, where there is evidence which provides reasonable grounds to suspect it.

• Courts can ratify a will

The Report recommends a dispensing of power to allow the courts to prove wills in exceptional circumstances where it is clear there is a will which the court is satisfied represented the testator’s wishes, but it did not get finalised in time or properly.

These are the headline reforms but there are also lots of other smaller reforms proposed on things like, for example, who can act as witnesses to wills, and sign on a testator’s behalf and some amendments to the law on when a will can be rectified (corrected in the case of errors) and where gifts adeem (where they fail if they no longer form part of a testator’s estate on death).

When could recommendations be implemented?

As part of the project, the Law Commission have produced a draft Bill for an entirely new Wills Act, to provide a single, modern Act that contains all the legislation governing wills in one place.

It is now for Government to consider and respond to the Law Commission’s recommendations. Under the Protocol between the Lord Chancellor (on behalf of Government) and the Law Commission of England and Wales, the responsible Minister will respond to the recommendations as soon as possible, and in any event with an interim response within six months of publication of the Report and a full response within a year.

The reforms are only proposals at this stage, and it is likely to still be a while away from implementation as they now need to be considered by Parliament who have up to 6 months to provide their interim response, and up to 12 months for a final report.

Reaction

Following the release of the Report, Laura Abbott, Partner at Rothley Law and member of the Society of Trust and Estate Practitioners (STEP), commented:

“Firstly, the project was very welcome among practitioners as the Wills Act is nearly 200 years old and so it was appropriate for it to be the subject of review to make sure it reflects modern society. The project reviewed various parts of the existing Act which were the subject of disputes following death. The review has been comprehensive, and the proposed reforms are bold with the Commission not shying away from tackling difficult areas. If they are all implemented, the wills and probate landscape could be very different.

Abolishing the rule that marriage revokes a will is particularly pleasing, as is the testamentary capacity clarification as the confusion over whether the existing Banks v Goodfellow test or the Mental Capacity Act should apply has been a consistent theme in most capacity cases since the Act’s introduction, so statutory intervention is needed. However, it will make capacity assessment at the point of will making more onerous and so potentially more costly, which would conversely have the opposite effect the reforms are trying to achieve.

An inference of undue influence to make it easier for those claims to run is also welcomed, as currently it is rare to plead because it is so difficult to prove, which means it is easier for it to happen and go unchallenged. This also brings undue influence in the preparation of a will on more of an equal footing with undue influence in respect of lifetime gifts where there is a presumption of undue influence.

The introduction of electronic wills will need to be considered carefully to ensure appropriate safeguards are in place. Whilst the need to modernise is clear to hopefully encourage more people to make wills, it is concerning from the point of view of our increasingly elderly population and potential financial abuse of the vulnerable which is already on the increase.

On the one hand, the ability for the court to allow a will to be proved seems sensible in situations of premature death, say before a planned will signing or where a will fails due to a strict (perhaps) harsh application of the S9 formalities, the current formalities are there for good reason (to protect testators) and this may open the floodgates to all sorts of spurious disputes regarding incomplete wills. It is not always helpful to solve one problem by simply replacing it with another.”

See also

Place a deceased estates notice

The duties of an executor: what to do when someone dies

Find out more

Wills (Law Commission)

Modernising Wills Law: Summary of the Report (Law Commission)

Wills Act 1837 (Legislation)

Mental Capacity Act 2005 (Legislation)

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Publication date

16 May 2025

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.