Will-coming change: A breakdown of the law commission’s review on wills

The Law Commission released its report on 16 May 2025 examining the law governing the creation of wills. The report proposes several reforms with the aim of increasing testamentary freedom, reducing fraud and undue influence and increasing the clarity and certainty of the law.

Background

The Wills Act was enacted in 1837, while the case of Banks v Goodfellow governing the test for capacity dates back to 1870. Perhaps unsurprisingly, the law seems largely outdated, discouraging many from creating a will. In fact, it is estimated that around 40% of the UK adult population doesn't have a will.

In response to this, the Law Commission conducted two separate consultations in 2017 and 2023. The proposals that have been put forward are as follows:

1. Enable the courts to dispense with formalities where the intentions of the deceased are clear
2. Introduce electronic wills
3. Create new rules to protect those making a will from undue influence
4. Change the capacity test to account for modern understanding of medical conditions
5. Lower the age that a will can be made from 18 to 16
6. Amend the rule that a marriage or civil partnership will revoke an existing will

Reducing the formalities

Proposal: Provide courts with the ability to exercise discretion and dispense with the formalities under s.9 of the Wills Act 1837 in circumstances where the formalities are not followed but the intention of the testator is clear. 

Advantages: Such power will give the courts flexibility, allowing acceptance of wills made by unconventional means (eg on a mobile phone or handwritten note) provided that the court can establish that the testator intended to create a will. This will shift the focus of litigation from upholding the formal rules to upholding testamentary intention. This is encouraging for those considering a will as they can be reassured that their intention will not be lost due to trivial mistakes linked to formalities.

Disadvantages: There is currently a lack of evidence on the extent to which wills are currently invalidated due to non-compliance, so the potential effect of this proposal is uncertain. Furthermore, providing the court with discretion could open the floodgate to new legal challenges and create uncertainty in regards to what constitutes a valid will.

Introducing electronic wills

Proposal: Introduce bespoke legislation to both enable and govern the creation of electronic wills. Note, this is not a proposal to allow will creation by any electronic means, instead it is a proposal to prescribe a specific statutory process by which wills can be created electronically. 

Advantages: This will likely improve the ease and efficiency with which wills are created. The digitalised process would reduce the administrative burden involved in producing and storing paper wills and allow the necessary individuals to view a copy with greater ease. Furthermore, it could assist those who would otherwise struggle to attend face-to-face meetings with a solicitor by increasing accessibility.

Disadvantages: However, digitalising a process that has only ever been paper-based presents difficulties. Firstly, electronic wills will need to be governed separately from paper wills as it is uncertain whether they could comply with the existing formalities under the Wills Act 1837. This could create confusion as to what is required, particularly if a will consists of both paper and electronic documents. Secondly, the 2017 consultation identified that there was a low demand for electronic wills, owing mainly to the lack of sufficiently accessible, well-understood or trusted technology available. Although use of technology has evolved drastically since 2017, the sophisticated systems and rigid formalities required to address issues including fraud, formatting and storage could reduce accessibility, possibly pushing demand further towards paper wills.

Lowering the age restriction

Proposals: Lower the legal age at which an individual can create a will from 18 to 16 and allow individuals below the age of 16 to create a will where they can demonstrate sufficient understanding. 

Advantages: This reflects a changing society in which 16 to 17 year olds are increasingly recognised as capable decision-makers. The change benefits children with significant assets wishing to decide how their property is dealt with. In the modern world, there are plenty of ways people under the age of 18 are able to build wealth, either through gifts from parents, or via other pursuits (such as in the case of darts player Luke Littler who we wrote about being unable to make a will last year).

Disadvantages: Lowering the age restriction potentially increases the scope for undue influence, leading to more litigation. The point of demonstrating sufficient understanding for those under the required age may also become a point of contention.

Revocation by marriage or civil partnership

Proposal: Remove the rule that marriage or civil partnership revokes a will. 

Advantages: This will negate “predatory marriages”, where an individual marries someone who is elderly or lacking mental capacity as a form of financial abuse. By preventing automatic revocation, the “predatory” spouse or civil partner will no longer be able to exploit the default intestacy rules that entitle them to deceased’s estate in the absence of the will.

Disadvantages: For marriages or civil partnerships that are not ill-intentioned, the widow/widower will be left without fair entitlement unless the deceased executed an updated will to make provisions for them. The onus will be on the widow/widower to claim entitlement under the Inheritance (Provision of Family and Dependants) Act 1975 . However, it is worth noting that the courts tend to favour spouses/civil partners who claim under the 1975 Act, meaning that a successful claim is likely. This seems to level the playing field as individuals will no longer become entitled by default to another’s estate simply by marriage or civil partnership but will be able to rely on the safety net of the 1975 Act if unfairly left without reasonable financial provision. Although it seems disadvantageous to push more individuals towards court claims, the Commission notes that the high prospect of success under the 1975 Act means it is likely that settlement between beneficiaries and spouses/civil partners will be encouraged.

Changing the capacity test

Proposal: Replace the current test of capacity under Banks v Goodfellow with the test under the Mental Capacity Act 2005. 

Advantages: While the two tests are similar, a key difference is that the MCA 2005 presumes that the testator has capacity, whereas under Banks, provided the challenger can raise a real doubt over the capacity of the testator, it is for the will’s proponent to prove otherwise. This difference is beneficial as the assumption of capacity enables an assessment on a case-by-case basis, preventing evaluations of capacity purely based on any medical status, conditions or diagnosis. As a result, the MCA 2005 test better reflects modern understandings of medical conditions and how this could interplay with an individual’s ability to execute a will.

Disadvantages: Although the MCA 2005 test is well understood by medical professionals and lawyers, the Banks test has become well-established amongst much of the public and other practitioners, meaning the reform could cause confusion and increases in litigation. The Law Commission proposes addressing this by way of a Code of Practice, highlighting elements of the Banks test still relevant to assessing testamentary capacity while removing any further conflicts with the MCA 2005 test.

Differentiating knowledge, approval and undue influence

Proposals: Introduce a statutory doctrine of testamentary undue influence, while also narrowing the scope of the requirement for knowledge and approval so that the only evidence required is that the testator knew that they were creating a will and the terms of that will.

Advantages: The requirement for knowledge and approval means that the testator must be aware of and approve the contents of their will. Undue influence requires the knowledge and approval of the will to be given freely. However, the current law creates a significant overlap between both concepts. The result is a high number of claims on the basis of knowledge and approval – which is easier to prove – despite the relevant facts indicating undue influence. The proposed changes aim to reduce this overlap and focus claims on undue influence where appropriate. This will direct the court’s enquiry more appropriately and help create a successful outcome for claims which may have otherwise failed.

Disadvantages: By providing this clearer route to challenge, this is likely to lead to an increase in litigation. However, it is likely that many of the ‘additional’ claims on the basis of undue influence will be claims that would have otherwise been brought on the basis of lack of knowledge and approval, so the apparent increase may simply be a result of the re-categorisation of such claims.

Effect of the reform

While the exact effect remains to be seen, it is clear that the proposals prioritise modernisation and focus on the real intentions of the testator. With the introduction of new rules and formalities, however, there is likely to be a resulting increase in litigation, with the potential for grey areas in understanding to arise.