The Law Commission’s report, Modernising Wills Law, proposes significant changes. This article explores what some of the recommendations could mean for professionals and when these changes might come into effect.
Background
The Law Commission began its review in 2016, aiming to address the rigidity of formal requirements, inconsistencies around mental capacity, and the failure to accommodate modern technology.
The law governing wills in England and Wales is rooted in Victorian legislation and subsequent case law. Whilst the current law has stood the test of time, reform is long overdue.
Longer life expectancy brings increased ill-health and cognitive decline, estates are more valuable due to rising property prices and electronic documents are part of everyday life.
Key proposals
The Commission seeks to balance testamentary freedom with the protection of vulnerable testators and to provide greater clarity on the law.
Some of the key recommendations are:
1. Changing the test for testamentary capacity
One of the most significant changes is to replace Banks v Goodfellow with the Mental Capacity Act 2005 (“MCA”).
The MCA Code of Practice will outline when a formal capacity assessment will be needed and how the MCA test will specifically apply to the decision to make a will.
Professionals will need to follow this guidance on how to assess testamentary capacity, what records they should keep and what steps to take to support a testator.
In contentious probate matters, where testamentary capacity is assessed retrospectively, there will be a transitional period. Depending on when the will was made, either the Banks v Goodfellow or MCA test will apply. Where the MCA applies, adherence to the Code of Practice will likely be scrutinised.
2. Ending the automatic revocation of wills upon marriage to protect vulnerable people from predatory marriages. Professionals will need to advise testators to update their wills if they get married and wish for their spouse to inherit.
This change could lead to an increase in claims under the Inheritance (Provision for Family and Dependants) Act 1975 by spouses if testators do not update their will post-marriage.
3. Lowering the threshold for undue influence, allowing it to be inferred when evidence provides reasonable suspicion.
The court will consider, among other factors, the circumstances in which the will was created. More than ever, professionals’ attendance notes must clearly document the involvement of others in the preparation of a testator’s will. This can help both infer undue influence, but also to uphold the testator’s wishes by demonstrating they freely formed their own intentions.
To avoid overlap, the draft Bill clarifies that “knowledge and approval” means the testator must have intended to make the will in the terms they did, and that they understood its contents and its effect.
Again, clear attendance notes demonstrating a testator’s intention and understanding will be crucial evidence.
When will the changes come into effect?
Parliament must enact the changes for them to become law. This could take years, and the final legislation may differ to the current proposals.
If Parliament did implement the draft Bill, most changes would apply to wills executed two months after the new Act comes into force.
The change regarding the revocation of wills on marriage would apply to unions formed after the Act’s commencement.
Some provisions would apply where the testator dies on or after the day the Act comes into force. These would include the Court’s power to:
- validate wills (with limited scope for wills made within two months of commencement)
- infer undue influence
- rectify wills
- order financial provision under the 1975 Act from property passing under a mutual will.
The same timing would apply to changes concerning:
- disclaimer and forfeiture provisions
- property destroyed or lost at the time at death
- incomplete transactions relating to property specifically disposed of in the will.
For some time after the new changes come into effect there will need to be careful thought about which law to apply.
Conclusion
Whilst the Law Commission’s 2025 proposals are not law yet, the draft Bill signals a clear step towards modernisation.
It is likely that private client professionals will be significantly impacted if the proposals are enacted. Knowing when the changes will come into effect will be imperative, so advisors are ready to implement any necessary changes to their daily practice.
For contentious matters, it is likely that each matter will need to be considered on a case-by-case basis to determine which legal test to apply depending on the claims being made, when the testator died and when the will was made.
It will be interesting to see whether the Government takes the recommendations forward and what changes, if any, Parliament decides to make.
Rachel Leech is an Associate in the Private Wealth Disputes Team at Birketts LLP
