Modernising Wills Law: What The Upcoming Reforms Mean For You

Law Commission publishes its long-awaited report and proposals on modernising the law surrounding wills.

Amongst the government's announcements and draft legislation confirming their proposed changes to the current inheritance tax regime, the Law Commission has quietly published itslong-awaited reportand draft Bill aimed at reforming the Wills Act 1837. The recommendations are designed to modernise the nearly 200-year-old framework, and place estate planning firmly within the 21st century.

The proposed reforms are aimed at supporting testamentary freedom, protecting testators, and increasing clarity and certainty in the law surrounding Wills.

What changes are being proposed?

Lower Age Threshold – Wills at 16

Currently, only individuals aged 18 or over can legally make a will. The reform proposes lowering this following text to to 16, while allowing exceptions for those under 16 with court permission. This means that younger adults – perhaps those who stand to inherit a business or property – can now have their wishes documented earlier, avoiding default intestacy rules.

Aligning with the Mental Capacity Act

The traditional "Banks v Goodfellow" test for testamentary capacity was established in 1870 and consequently can often be inconsistent with modern practice when considering mental capacity. The proposed reforms would adopt the Mental Capacity Act 2005 as the standard test, complete with a statutory code of practice. This reform aims to provider greater clarity and consistency in capacity assessments and thereby reduce disputes over a testator's capacity.

The Move to Electronic Wills

Electronic documentation is now widespread. The proposed reforms aim to formally recognise electronic wills, subject to strict formal requirements, such as digital signatures and secure storage. Remote execution and electronic wills offer greater convenience and are also more manageable for clients with mobility issues or those living abroad. However, they will include technological safeguards to ensure authenticity.

Removing Automatic Revocation on Marriage

Currently, marriage or civil partnership automatically voids a will. This rule has often come under fire for its potential for misuse, for example, by predatory marriages. The Commission proposes abolishing this rule to prevent such misuse and to avoid unintentionally disinheriting previous beneficiaries. The reform would provide greater protection for vulnerable and elderly testators, who may be at higher risk of this form of financial abuse. Under this proposed reform, couples who marry without updating their wills can retain their original testamentary intentions. If they later wish to change their Will after marriage, they may do so, but won't be caught off-guard.

Formalities — and Flexibility from the Court

Under the current law, incorrect execution of a Will, such as failing to call a witness, can render a will void – even if the intentions of the testator are clear. The reform proposes giving courts discretion to validate improperly executed wills if the testator's intentions are evident. This provides a valuable safety net for testators, ensuring that minor errors don't scupper or delay a client's estate‑planning goals.

The proposed reforms would still, however, require an application to court to have the Will validated, which would incur significant time and professional fees. It is important that this reform is still considered a last resort for creating a Will and ensuring a Will is properly executed should still be considered carefully at the time the testator signs the document.

Expanding Protection Against Undue Influence

The Commission also recommends shifting the burden of proof where undue influence is suspected. At present, where a Will is challenged on the grounds of undue influence, the burden lies with the person challenging the Will to prove that the testator was unduly influenced. However, this is very difficult to prove, as often there is only circumstantial evidence available. This means that it is more likely that the court will find that the Will was created legitimately rather than coerced.

Under the proposed reforms, those upholding the Will must prove it was made freely and consciously. This bolsters protection for vulnerable individuals – such as the elderly or those with diminished capacity by making it easier to challenge potentially coerced Wills.

You can find more information about the Law Commission's report and proposed reforms here:

Law Commission Report - Modernising Wills Law

What do the proposed reforms mean for you?

At present, the reforms are only proposals. It remains to be seen whether the government will adopt the Law Commission's proposals. The report does serve as an important reminder that Wills should be reviewed and updated regularly to ensure they are still appropriate for your circumstances as well as tax efficient.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.