On 16 May 2025, the Law Commission published its report on Modernising Wills Law (the 'Report'). It marks the most substantial proposed reform of legislation on Wills in England and Wales since the Wills Act 1837. At nearly 500 pages, the Report is detailed and comprehensive, reflecting a decade of consultation and engagement with legal professionals, academics and the public.
The Report is published in two volumes; Volume I contains the substantive Report and analysis; and Volume II contains a draft bill for a new Wills Act. We set out the key recommendations in the Report and the initial thoughts of Naomi O'Higgins and Brendan Udokoro on them:
Abolishing the automatic revocation of Wills on marriage
Under the current law, a will is automatically revoked on marriage (unless the will was made in the contemplation of marriage). Will makers are often unaware of this rule, which can lead to unintended intestacy on death.
Abolishing this rule removes a legal trap that is often criticised for enabling 'predatory marriages', i.e., where people exploit elderly or vulnerable people on the basis that marriage revokes a will and therefore, on an intestacy the predatory partner would inherit their estate under the rules of intestacy. This proposal is, therefore, particularly welcomed. It addresses an aspect of the law that can have a disproportionate effect on older and vulnerable individuals and provides better protection for those at risk of financial exploitation.
Whilst there is a possibility that this may lead to an increase in claims under the Inheritance (Provision for Family and Dependants) Act 1975 by spouses who have not been provided for where the deceased has not made an updated Will, the benefits of this change would seem to outweigh these potential downsides.
Changes to the testamentary capacity test
The Report recommends replacing the historic and well-established Banks v Goodfellow test with the statutory framework set out in the Mental Capacity Act 2005 to modernise the assessment of testamentary capacity.
The change would harmonise the assessment of mental capacity across legal contexts, using a functional, decision-specific approach already familiar to medical and legal professionals.
However, transitioning to the test under the Mental Capacity Act may initially lead to confusion, particularly in contentious probate litigation where expert witnesses and judges have long applied the Banks v Goodfellow standard particularly because of the different burden of proof under the two tests. The Mental Capacity Act presumes capacity whilst the Banks v Goodfellow test provides that the burden of proof shifts on to the proponent of the will where the challenger raised "real doubts" about the testator's capacity.
Empowering courts to recognise informal wills
The Report recommends granting courts discretion to validate informal documents as wills where there is clear evidence of the will maker's intention to make a will. This could include unwitnessed notes, digital records, or other forms of expression that would not comply with the formalities currently required under the Wills Act 1837.
This reform promotes testamentary freedom and provides a safety net in circumstances where a person has made a genuine attempt to record their wishes but has failed to satisfy the technical formalities. It aligns with reforms in other common law jurisdictions that recognise the "dispensing power" of the courts.
This could, however, potentially introduce a degree of uncertainty as to whether a valid will has been made which may result in litigation over authenticity and meaning. Questions may arise over whether an informal document was intended as a final will or merely a draft or expression of wishes. The recommendations do, however, make it clear that the court's discretion should only be exercised in exceptional circumstances and on a case-by-case basis.
Recognising electronic wills
The Report proposes that electronic wills, created, signed, and stored digitally, should be capable of being formally valid, provided they meet necessary safeguards around authenticity and security.
This reform brings wills law in line with digital practices adopted in other areas of law and other jurisdictions. It is likely to increase accessibility, especially for individuals who may not be able to execute a physical will and reflects long-term social and technological developments.
However, permitting electronic wills to be valid will very likely raise complex issues around fraud, identity verification, cybersecurity, and long-term data protection. Without rigorous safeguards, electronic wills could exacerbate estate disputes. robust regulation and infrastructure would be required to ensure integrity and public confidence, otherwise electronic wills may create more problems than they solve.
Changes to the basis for challenging a Will on the basis of undue influence
Currently, establishing undue influence in probate cases requires the alleging party to provide direct evidence. This is a particularly high bar that often makes it difficult to successfully challenge the validity of a will in circumstances where undue influence may be suspected. It has also led to parties pleading want of knowledge and approval as a "back door" where there is potential undue influence.
The Report proposes a more flexible approach to assessing undue influence. It recommends that courts be permitted to infer undue influence from circumstantial evidence rather than requiring direct evidence. This evidential change aims to strengthen protections for vulnerable testators, particularly in circumstances in which direct evidence is unlikely to exist. However, a more flexible approach to what are serious allegations may lead to increased uncertainty and litigation.
Reducing the minimum age that a person can make a will
The Report recommends lowering the age a person can make a will from 18 to 16.
This recommendation recognises that young people now often assume legal and financial responsibilities at an earlier age. Although it is unlikely that large numbers of 16 and 17 year olds will make a will, this proposed reform will promote the autonomy of young people. It is particularly relevant in today's digital economy where young people, some of whom earn substantial income on social media platforms like Instagram and TikTok, may wish to make arrangements for their assets and digital rights earlier.
Enabling early engagement with estate planning provides practical legal benefits and promotes greater financial awareness and responsibility among young people. This is a positive step that in our view should be supported.
Looking ahead: The path to legislative reform
The inclusion of a draft bill in the Report underscores the Law Commission's commitment to practical reform. If adopted, these reforms have the potential to modernise, simplify and better equip testamentary legislation to meet current social and technological changes, albeit introducing changes to long standing legal principles and practice is bound to lead to some teething problems.
While the Law Commission's proposals are a significant, it is important to stress that these are just recommendations. The current legal framework is unchanged. It will now be for the government to consider whether, and how, to implement the suggested reforms. This will likely involve further consultation, potential amendments to the draft Bill and eventual parliamentary scrutiny. Until new legislation is enacted, the existing formalities under the Wills Act 1837 and established case law, continue to govern the making and validity of wills.
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