On 16th May 2025, the Law Commission of England and Wales released its long-awaited report, ‘Modernising Wills Law’ (the Report). The Report seeks to update the current law on Wills to better reflect modern societal changes.
Why has the Law Commission produced this report?
The Wills Act 1837 has governed the law on Wills for almost 200 years and, although case law has developed, it remains the key piece of legislation underpinning the legal requirements for Wills. The Report recognises the need for a legal framework that reflects modern life, considering many changes including longer life expectancies and its impact on capacity, and the rise in the use of electronic documents.
There was an initial consultation paper in 2017 which recommended modernising the law relating to Wills. The project was then paused and a supplementary consultation paper was published in 2023. This final report is a result of this work and is accompanied by a draft Bill, intended to replace the Wills Act 1837.
What recommendations does the Report include?
The Report sets out 31 proposals and a summary of several of the key recommendations are outlined below:
Electronic Wills
One of the key headline topics in the Report is the proposal to introduce electronic Wills. If introduced, Wills could be written, signed and stored digitally. The Report comments that electronic Wills must meet traditional formality requirements (including being witnessed by two independent witnesses) and ‘additional formality requirements’ for digital security.
Although electronic Wills could result in the Will making process being more accessible and convenient, the Report does not include details on the type of system that would be considered sufficiently reliable and secure to produce electronic Wills. It is anticipated that there will be a further consultation before such regulations are made.
Dispensing Powers
The Law Commission recommended the introduction of a court power to dispense with the formalities of making a valid Will. In order to exercise the power, the court must be clear what the intentions were of the person making the will and satisfied that such intentions remained unchanged at the time of the person’s death.
The Commission recognised that the introduction of such a power could provide uncertainty, however they commented on the success that dispensing powers have had in other jurisdictions, such as Canada, Australia and New Zealand.
Mental Capacity
The current test to determine if a person has sufficient mental capacity to make a Will (also referred to as ‘testamentary capacity’) is set out in a case called Banks v Goodfellow [1870]. This states that the person making the Will must understand the nature and effects of the Will, the extent of their property and the potential claims on their estate.
The Law Commission has recommended the test set out in the Mental Capacity Act 2005 should apply to testamentary capacity and that a new code of practice on testamentary capacity should be issued.
Lowering the age to make a Will
Currently, only people who are aged over 18 can make a Will. The Commission examined whether the minimum age should be reduced to 16, referring to other jurisdictions which allow this. They also included a recommendation that the court should have the power to authorise a child under 16 to make a Will, but only in exceptional circumstances.
The Commission recognised that injustices can arise under the current rules where a child dies and their estate is distributed in accordance with the Intestacy Rules, which may not be in line with the child’s wishes.
Abolishing the automatic revocation of a Will by marriage
Under current law, if a person makes a Will and then later gets married or enters a civil partnership, the marriage or civil partnership automatically revokes the Will, unless it is expressly anticipated in the Will.
The Report highlights that this rule is not well known amongst the general public and can result in unexpected intestacies. They also commented that the rule is open to exploitation by “predatory marriages”.
The proposals included in the Report are not yet law, however they provide an indication into the direction that the government might take in the future. It also serves as a reminder of the importance of taking professional advice on drafting your Will under the current rules, to ensure that you are kept informed of how your Will could be affected by potential changes.
