Dispensing powers, electronic wills and undue influence amongst key recommendations in Law Commission’s modernising Wills Report

The Law Commission has published its much-anticipated report into the modernisation of Wills law and testamentary freedom in which it outlines reform recommendations including the enablement of electronic wills; the abolition of the law that revokes a Will upon marriage; and the updating of the test for testamentary capacity to recognise the modern test in the Mental Capacity Act 2005.

The law which governs Will writing was enacted in Victorian times and remains largely unchanged in the intervening years; the Law Commission say their report makes recommendation which aim to ‘clarify the law and to ensure it is fit for purpose in the modern age.’

There is no doubt reform is needed. Longer life expectancies, which have an impact on capacity, and the impending Great Wealth Transfer, the largest transfer of wealth from one generation to the next in living history, makes reform of wills and estate planning all the more urgent. There are other economic and political factors at play including the value of assets, not least property, and the impact of government reforms to pensions and financial planning.

And technological considerations, not even though about at the time of the Wills Act 1837, including the creation of electronic documentation, and provision for digital assets needs to be accounted for in statute. The introduction of The Property (Digital Assets) etc Bill, which moved to a second reading in the House of Commons this week, is a direct result of the work of the Law Commission in recognising the need for a third category of personal property not yet accounted for in current precedent.

Modernising Wills Law: What the Law Commission recommend

Dispensing power: the Law Commission recommend in cases where a Will is invalid or where a person’s intentions are clear, then there should be a mechanism making it possible to give effect to those intentions. The report adds

“the court will be able to look at any record made by the testator which expresses their testamentary intentions, including electronic documents, as well as video and sound recordings. In order to exercise the power, the court will have to be satisfied that what the records show are the clear and genuine testamentary intentions of the deceased person. The court will also have to be satisfied that these testamentary intentions remained unchanged at the time of the person’s death: that they truly were the person’s settled wishes with respect to their estate.”

The Commission add it recognises ‘concerns’ the introduction of dispensing powers could have but ‘take the view added uncertainty is justified in light of the benefits of the dispensing power and the ability to give effect to testators’ intentions in appropriate cases’ citing success in Canada, Australia and New Zealand as precedent.

Reducing the minimum age at which a person can make a will from 18 to 16: Currently, a person must be 18 years old to make a valid will. A child who is terminally ill and who does not wish one of their parents to inherit from them or decide what happens to their body when they die, for example because the parent has not played a role in their life, has no ability to set out their binding wishes.  Other countries allow children under 18 to make wills, and the law presumes that children from age 16 have capacity to make other types of decisions therefore the Commission recommends reducing the age limit.

Rectification: currently governed section 20 of the Administration of Justice Act 1982, the Commission recommend a court should be able to rectify a will where it is satisfied that the will does not give effect to the testator’s intentions because the drafter failed to understand the meaning or direct effect of the language used in the will. While dispensing powers would assist where there are failures of process, rectification assumes due process has been followed, but there are errors which do not give effect to the testator’s intentions.

Undue influence: a key part of the recommendations, the Commission discuss undue influence extensively. It acknowledges the challenge of proving undue influence, ‘particularly if there is only circumstantial evidence, as is often the case. The court is likely to find that the testator was persuaded legitimately, rather than coerced’ says the report, adding

“The fact that undue influence often happens behind closed doors and by someone close to the testator may in some cases present an insurmountable hurdle to establishing that the testator was coerced particularly after the testator has died”

The Commission recommends where undue influence is alleged, and there is evidence to provide ‘reasonable grounds’ a court will be able to infer that undue influence took place, placing the responsibility for the burden of proof on the person seeking to prove the will to satisfy the court. Attached to this recommendation is a further recommendation for the testator to demonstrate they understood the content and effect of the Will, introducing a ‘knowledge and approval’ into statute.

The Commission extends its recommendations around undue influence and protecting testators to the subject of gifts, specifically those who are cohabitants of witnesses or those who sign on the testator’s behalf where there is a clear conflict of interest. While the law currently prevents gifts in cases to spouses or civil partners where the witness, or those who sign on the testator’s behalf, is married, there is no provision for cohabitees; which given the rise sizeable rise in cohabiting couples means this is ‘anomalous’ say the Commission – although a further recommendation provides for a court to apply the gift if it considers it just and reasonable to do so.

Revocation of a Will after Marriage: The issues of cohabitation, undue influence, and predatory marriage are considered in recommendations that would remove the current law that marriage revokes a Will; which would add a layer of protection for vulnerable people victims of predatory marriage, and recognise the social context of cohabitation and not penalising the choices people choose to make by not getting married.

Capacity: One of the more extensive elements of the report is the recommendation to refer to the Mental Capacity Act 2005 when considering capacity. It is ‘unprincipled and confusing’ say the Commission to have two tests for capacity. Where Banks v Goodfellow is often cited in contentious probate matters, MCA is the test for Court of Protection say the Commission. MCA presumes capacity and should apply in the context of making a Will says the report, and as an addendum, the current ‘Golden Rule’ should be replaced by a ‘code of practice on testamentary capacity issued under the Mental Capacity Act 2005 on assessing capacity, and that anyone preparing a will or assessing capacity in their role as a professional or for payment should be required to have regard to it.’

Electronic Wills: The report refers to both electronic wills and digital execution; recognising neither were available when the Act was first published. It is currently ‘unclear’ say the Commission as to whether the 1837 Act could provide for electronic wills. It therefore recommends provision should be made for electronic Wills which must be secure and provide the same level of security against fraud and undue influence; and provide the same levels of certainty around testamentary capacity. Any electronic Wills should therefore meet ‘additional formality requirements’ which include

• at the time of the signing of the will, links any signature with the person whose signature it is;
• identifies the will so that it can be distinguished from any copies; and
• protects the will against alteration or destruction other than by the testator or a person authorised or directed by the testator to alter or destroy the will.
• the witness or person signing on behalf of the testator should continue to be in their present by way of video call

Discussing the work and report Professor Nick Hopkins, Commissioner for Property, Family and Trust Law, said,

“Wills law is important as it can potentially affect everyone. Many people will make a will, and many others may benefit from someone else’s will. Wills are also a significant source of charitable funds, with many charities receiving a large portion of their funding from legacies left to them.

“Our recommendations will modernise wills law to promote testamentary freedom, bringing with them greater certainty, clarity and fairness “

The report has been some time in the making, beginning in 2016 and resulting in a consultation paper in Jul 2017 followed by a public consultation. In 2019 the project was paused to look at the law governing weddings, having agreed prioritise that work at the request of the-then Conservative government. The final report on weddings was published in July 2022. The Wills project was re-visited with a Supplementary Consultation Paper published in October 2023 to re-consult on two discrete issues: electronic wills and the rule that a marriage or civil partnership revokes an existing will. The publication of the report is the culmination of this work.

Full details of this project including the final report and a summary are available at https://lawcom.gov.uk/project/wills/

The Law Commission will be presenting at TWP Festival on 25th June 2025; a day like no other, TWP Festival is Private Client’s answer to Glastonbury, turning the traditional conference on its head with the including:

• The Show Must Go On: The Law Commission join TWP Festival to present on their proposals on how legislation enacted in 1837 can be modernised and brought into the 21st Century
• Hello… is it me you’re looking for?: Ian Cooper leads this session identifying ways firms can increase conversion rates of potential clients into profitable business
• Culture Club: Our panel of experts discuss the benefits associated with positive workplace culture, wellbeing, innovative ways of working and the 4-day week, and the impact on risk, recruitment, and retention.
• Why can’t we be friends? – improving relations between charities and practitioners
• You raise me up – improving professional standards across regulated and unregulated sectors
• A little less conversation – the lost art of rapport building in a digital age
• … and much more

Find out more and book your ticket(s) today: www.todayswillsandprobate.co.uk/twp-festival/