The Law Commission is undertaking a major review of the law governing wills in England and Wales, aiming to bring it in line with 21st-century realities. The current legal framework, primarily based on the Wills Act 1837, is considered outdated, inflexible, and poorly suited to modern circumstances, including digital technology, evolving family structures, and improved understanding of mental capacity. With around 40% of UK adults without a will, and many existing wills vulnerable to legal invalidation due to minor errors, reform is seen as both necessary and urgent.
The Law Commission’s project began in 2016 and forms part of its broader law reform programme. After a pause in 2019 to prioritise the reform of weddings law, the wills review resumed in 2022. A Supplementary Consultation Paper was published in 2023 to address two emerging concerns: the rise of electronic wills and the rule that marriage or civil partnership revokes a will. These and other topics are informing the final recommendations, due in May 2025.
What are the Key Areas Under Review by The Law Commission?
1. Electronic Wills:
The Commission is exploring whether wills can be made and stored digitally, and how to protect against fraud and undue influence in the absence of physical witnesses.
2. Revocation by Marriage:
Under current law, a will is automatically revoked by marriage unless stated otherwise. Given the increasing risk of predatory marriages, this rule is under scrutiny.
3. Testamentary Capacity:
Testamentary Capacity is a key focus of reform, as the current legal test based on the 1870 case Banks v Goodfellow may not adequately reflect modern medical understanding of conditions like dementia or fluctuating mental capacity. The Law Commission is considering whether to align this test with the Mental Capacity Act 2005, which offers a more flexible and functional approach. In practice, professionals often follow the Golden Rule from Kenward v Adams [1975], which advises that where a will is made by an elderly or seriously ill person, a medical practitioner should assess and confirm the person’s mental capacity. Though not legally required, this safeguard helps reduce disputes by ensuring the testator understood their decisions and was not under undue influence.
4. Formalities and Dispensing Powers:
Strict rules on signing and witnessing often lead to valid intentions being dismissed. The Commission is considering giving courts the power to uphold wills that clearly reflect the testator’s wishes, even if formalities were imperfectly followed.
5. Age of Testamentary Capacity:
Currently, individuals must be 18 to make a will. The review considers lowering this to 16, aligning with other legal responsibilities taken on at that age.
6. Undue Influence and Safeguards:
Strengthening protections against coercion and manipulation is a priority, with calls for clearer guidance and greater oversight by professionals involved in will-making.
7. Digital Assets:
As people increasingly hold wealth in digital forms, such as social media, cloud storage, or cryptocurrency, the Commission is beginning to shape legal provisions for handling digital estates.
Looking Ahead:
The Commission’s final report and draft Bill in May 2025 could trigger the biggest reform of wills law in over 150 years. These changes aim to make will-making more accessible, reflective of modern life, and better equipped to protect individuals’ true intentions and vulnerabilities. Whether you’re planning your estate or advising others, these reforms could significantly change how wills are made, interpreted, and contested in the years to come.
Wills Solicitors in Kingston Upon Thames
Rose & Rose Solicitors are committed to staying ahead of legal reforms to provide clear, up-to-date advice on wills and estate planning. As changes to wills law approach, we’re here to help you understand what they mean and ensure your wishes are properly protected.
Talk to our specialist team today.
