Law Commission Proposes Major Reforms to Wills

Written by Chris Thomas - 04.06.25

Proposed reforms to the law on Wills: what you need to know

The Law Commission has published long-awaited proposals to modernise the law on Wills, which has remained largely unchanged since 1837. The proposed changes would reflect modern life, from recognising digital Wills to better protecting vulnerable individuals.

Chris Thomas, Senior Associate in our Legacy team, explores the key recommendations and what they could mean in practice. While these are only proposals at this stage, we believe they are a sign of things to come and a timely reminder of why reviewing your Will regularly is so important.

It’s common knowledge that the law grinds slowly. The current legal framework around Wills takes that to the extreme. The main legislation dates from 1837: To put that in historical perspective it predates the coronation of Queen Victoria or the right of women to own money or property in their own name. It also predates formal recognition of Texas, Florida or California as states in America.

We should be grateful that change is likely before the legislation is 200 years old: The 1837 replaced an Act introduced by Henry VIII which prevailed for almost 300 years.

Other than a temporary concession (courtesy of covid), which allowed remote witnessing of Wills, the statute law governing Wills has failed to address changes in society, rapid technological advancements, or the evolving understanding around mental capacity.

The Law Commission's recommendations are designed to support testamentary freedom, protect vulnerable testators, and enhance clarity and certainty in the law. Here we set out some of the key proposals:

1. Embracing the Digital Age: Electronic Wills

Perhaps the most headline-grabbing recommendation is the proposed recognition of electronic wills.

While acknowledging concerns about security and fraud, the report suggests that new laws should permit wills to be created, signed, and stored digitally, provided they meet stringent additional formality requirements. This move reflects the increasing use of digital documents in all aspects of life and aims to make the will-making process more accessible. Further consultation is anticipated to establish robust safeguards.

2. Modernising Testamentary Capacity

The existing test for mental capacity to make a will, stems from the 1870 case of Banks v Goodfellow. The Law Commission recommends aligning the test with the Mental Capacity Act 2005, which already applies to many other legal decisions. This change aims to provide greater consistency across the legal system and will be accompanied by a new code of practice on testamentary capacity.

3. Lowering the Age for Making a Will

The report proposes reducing the minimum age for making a valid will from 18 to 16 years. This acknowledges the increasing financial independence of young people and seeks to prevent injustices where a minor's estate is distributed under intestacy rules, potentially against their wishes, in the event of their premature death. Why should the likes of Luke Littler, who had become world darts champion before he reached 18, be denied the right to leave their wealth as they wish?

4. Abolishing Automatic Revocation by Marriage

Marriage or civil partnership automatically revokes a pre-existing will under current law. The Law Commission recommends abolishing this rule, citing concerns about "predatory marriages" where vulnerable individuals can be coerced into marriage, thereby unintentionally revoking their carefully planned wills. Under the new proposals, a will would only be revoked if expressly stated by the testator.

5. Dispensing Powers

To address situations where a will fails to meet strict formalities despite clearly reflecting the testator's intentions, the report proposes introducing a court power to dispense with formality requirements. This means that a court could, in exceptional circumstances, uphold a will even if it wasn't perfectly executed, provided the deceased's clear and genuine intentions are evident. We lag far behind other jurisdictions in this respect; for example back in 2013 the Supreme Court of Queensland recognised an unsigned will typed on an i-phone.

6. Shifting the Evidential Burden for Undue Influence

Recognising the inherent difficulty in proving undue influence, which often occurs behind closed doors, the Law Commission recommends a significant shift in the evidential burden. Where there is sufficient evidence to suspect undue influence, the burden of proof would shift to the person seeking to uphold the will, rather than requiring the challenger to prove its presence. This aims to provide better protection for vulnerable testators.

Laurus Opinion

At Laurus we broadly welcome these proposals. If implemented, they would mark a transformative period for inheritance laws in England and Wales. While the Law Commission is only an advisory body, its reports often form the basis for future legislation. The government has welcomed the report and is expected to provide an interim response within six months, with a comprehensive response to follow within a year.

The abolition of revocation of wills on marriage does not command universal support amongst lawyers. It is perhaps the most controversial of the proposals.

Whatever changes are eventually implemented, the need for professional advice in drafting appropriate wills and ensuring tax efficiency will be undiminished. We can offer expertise in this area and in the field of contentious estates.

We see two areas in the proposals that may result in increased litigation:

The plans to give the courts dispensing powers to enable them to recognise imperfectly executed Wills may increase the number of disputes.
The abolition of revocation of wills on marriage may lead to an increased level of claims by disappointed spouses.

About the Author

Chris Thomas is a highly experienced private client solicitor with over 25 years of expertise in advising individuals, personal representatives, and trustees on estate planning, inheritance tax, and probate matters. As a full member of STEP and the Law Society Private Client section, Chris is dedicated to helping clients navigate complex legal issues with clarity and confidence. Whether you're looking to set up an LPA, manage an estate, or plan for the future, Chris provides tailored advice to ensure your affairs are in order.