What does the Law Commission's “Modernising Wills Law” report mean for private client disputes?

On 16 May 2025, the Law Commission released its report, Modernising Wills Law, which proposes significant reforms to the law governing wills in England and Wales.

The changes reflect a shift towards modernising the current legal framework, which has remained largely unchanged since the Wills Act 1837. These proposed reforms are expected to have significant ramifications on contentious probate matters.

Key recommendations and the implications

Electronic wills

In the rise of the digital age, it is perhaps unsurprising that the report recommends the formal recognition of electronic wills. Of course, this is caveated by the requirement that the system utilised to carry out such a process must be able to reliably identify the testator and witnesses, distinguish copies from originals, and prevent unauthorised alterations or destructions. Such a change may be able to streamline the production of wills and, provided the system offers clear records and authentication, it could also reduce disputes over the validity of a will. It may also introduce new challenges, such as ensuring the reliability and security of such digital platforms.

While there are still bound to be arguments over the authenticity of documents, these may be of an increasingly technical nature requiring those of us who specialise in contentious probate to brush up on our IT skills!

Increasing court power

The Law Commission recommends that the court has the power to dispense with traditional formality requirements for making a valid will, provided it is satisfied that the will reflects the clear and genuine testamentary intentions of the deceased. This could lead to fewer cases where wills are contested on technical grounds, thereby reducing litigation. However, it may also increase the burden on the court to interpret the intentions of the deceased, potentially leading to more subjective judgments and additional constraints on an already pressurised system. It could also give rise to greater arguments over what the deceased’s intentions were, leading parties to give additional consideration to the evidence which is circumstantial to the will making process.

Protections against undue influence

The report emphasises the importance of protecting testators from undue influence and fraud. The Law Commission recommends enhanced safeguards, and clearer guidelines could provide more robust grounds for challenging wills that are suspected to be the result of by undue pressure. An example of such a protection is the suggestion that wills no longer be revoked by marriage, therefore reducing the risk of predatory marriages. Strengthening these protections could help reduce disputes arising from allegations of coercion or manipulation, which are common in contentious probate cases. While making it easier to prove undue influence could be seen as a welcome move, lowering the test for claims on this basis could significantly increase the numbers of such allegations and keep those of us who specialise in this field rather busy! At present, lots of the cases we deal with involve the possibility of some form of undue influence, but given the high burden of proof, they’re often not pursued.

Increased certainty and consistency in the law

The report aims to increase certainty and reduce ambiguity in the interpretation of wills by modernising the law. A prime example being the recommendation that the interpretation of capacity be streamlined to align with the Court of Protection and the Mental Capacity Act (thus effectively removing the old common law test established in Banks v Goodfellow).

The Law Commission's proposed reforms represent a significant step towards modernising wills law and developing legislation that’s more reflective of recent societal and technological changes. However, they also introduce new challenges that will require careful implementation and ongoing evaluation to ensure they effectively balance the interests of testators and beneficiaries. Ultimately, the report's recommendations have the potential to significantly affect the contentious probate landscape, making it more efficient but probably no less prone to disputes, while also ensuring that the testamentary intentions of individuals are respected and protected.

Of course, whether the recommendations suggested by the report will ever be implemented, in whole or in part, remains to be seen – so let’s not get too excited just yet!