Modernising Wills: The Law Commission’s Long-Awaited Reforms

In May 2025, the Law Commission published its final report on modernising Wills, the first comprehensive review of Wills legislation in almost 200 years.

The report makes several recommendations aimed at supporting testamentary freedom, protecting testators (especially the vulnerable), and improving legal clarity.

A testator is the individual who creates and signs a valid Will specifying how their property and assets should be distributed after death.

The law of Wills is governed by the Wills Act 1837. A Will is one of the most important documents a person may sign in their lifetime, but the law surrounding Wills could be made clearer.

The key recommendations made by the Law Commission include:

Revocation by Marriage

Under the current law, unless a specific provision is included, a person’s Will is automatically revoked if they marry or form a civil partnership. The recommendation is to end automatic disinheritance on marriage or civil partnership, protecting against predatory marriages where elderly or vulnerable individuals are coerced.

Electronic Wills

The report recommends that Wills made electronically should be formally recognised, with safeguards such as secure digital signatures, verified witness identity, and tamper-proof storage to ensure authenticity.

The current requirements for executing a valid Will have changed little since the Wills Act 1837 came into force. The COVID-19 pandemic highlighted the advantages of remote working, and the report suggests that Wills should now be capable of electronic signing, provided robust security measures are in place.

Minimum Age for Making a Will

At present, individuals must be over 18 to make a valid Will, with limited exceptions for members of the armed forces. The reform proposes lowering this age to 16.

Capacity Test

The outdated Banks v Goodfellow (1870) test is currently used to assess a person’s capacity to make a Will. The test outlines four key elements a testator must possess:

1. Understanding the nature of the act.
2. Understanding the extent of their property.
3. Understanding moral claims.
4. Absence of delusions.

The Banks v Goodfellow test ensures that a testator can make a rational and informed decision about their estate. The report recommends aligning the test with the Mental Capacity Act 2005.

Undue Influence Safeguards

If someone wishes to challenge a Will on the grounds of undue influence, the burden of proof currently lies with the person bringing the claim. Proving undue influence is difficult and carries a high threshold. The report recommends allowing courts to infer undue influence where there are reasonable grounds to suspect it, offering greater protection for vulnerable testators.

Dispensing Powers for Courts

If a Will fails to meet the formal requirements of the Wills Act 1837, it is currently invalid. The report proposes granting courts discretionary powers to validate Wills that do not meet all formalities if it is clear they reflect the testator’s settled intentions. This would prevent estates from being distributed under intestacy rules contrary to a testator’s wishes.

In Summary

The reforms are wide-ranging, modernising the law while enhancing protection for vulnerable individuals.

The recommendations are long overdue but have been met with some caution, particularly around implementing electronic Wills and ensuring safeguards against fraud.

How Pinney Talfourd Can Help

If you wish to speak with one of our lawyers about preparing a Will, please contact our main reception on 01708 229 444 and ask to speak to a member of the Private Client team.