Profession reacts to Law Commission’s Modernising Wills Law Report

‘Welcome’, ‘critical’ and ‘impactful’ are just three of the descriptions practitioners have used in response to the proposals put forward by the Law Commission in its long-awaited report on modernising wills law. 

Welcoming the report Minister for Courts and Legal Services Sarah Sackman KC MP said the 1837 legislation had ‘stood the test of time’, establishing the important principles and formalities to making a will so that safeguards are built into the process. But 2025 is a very different time; ‘society has changed enormously since the early 19th Century and technology has transformed our lives’ she added and the current law is outdated.

“We must embrace change, but the guiding principle in doing so will be to ensure that reform does not compromise existing freedoms or protecting the elderly and vulnerable in society from undue influence. The Government will make further announcements in due course, once it has given the report the detailed consideration it deserves.”

The 500 page Modernising Wills Law Report, the product of nearly 10 years of consultation, and the accompanying 70 page draft bill presents a raft of modernisation recommendations on legislation enacted in the 19th century. Today’s Wills and Probate has published a synopsis of the recommendations which include

• introducing a dispensing power in cases for courts to give effect to the intentions in a will, even if a will is invalid or where a person’s intentions are clear
• reducing the minimum age at which a person can make a will from 18 to 16
• recommendations a court could rectify a will that 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
• revoke the rule that nullifies a will in the event of marriage
• changing rule on gifts to witnesses and their spouses/cohabitees
• the acceptance of a single test for capacity which should be the Mental Capacity Act 2005
• the introduction of electronic wills.

Reflecting on the report Law Society president Richard Atkinson said:

“The Law Commission’s review on the laws around making a will is critical in allowing wills to reflect our times. We welcome the proposed amendments which embraces technological developments such as electronic wills. It is vital, however, that appropriate safeguards are put in place to make sure people have the necessary mental capacity to make a will of their own accord.

“As long as the necessary protections for the citizen are in place, reforming the laws around wills allows more people to effectively express their last wishes.”

The sentiment chimes with much of the reaction online and shared on social media; the reform proposals are broadly welcomed, so long as the right protections are in place.

“It is no exaggeration to say that the reforms being proposed are significant. And in my view, there is a good chance that most, if not all, will make it into the proposed new statute,”

said Bernadette Baker, Partner and Head of Private Wealth Disputes at Birketts LLP; colleague Lorna Spear, Partner in Private Client Advisory added

“The proposed reforms aim to address several long-standing issues within the current law and they are likely to be welcomed by practitioners and by members of the public.”

One of the most impactful elements of the proposals is the recommendation marriage should not longer revoke a will says Sangita Manek, a Will, Trust & Dispute partner at Irwin Mitchell. It’s a topic the Law Commission consulted on in 2017 when they suggest the awareness of predatory marriage ‘seemed low’ and there was little appetite to change the existing law.

“Many people are unaware of this rule and fail to update their wills after marriage, particularly in later-life or second marriages despite having no intention to change their testamentary wishes.”

said Manek, a point the Commission make in the report. In any event, a new spouse can still seek provision under the Inheritance (Provision for Family and Dependants) Act 1975, ensuring a fair balance of interests Manek concludes.

Emily Deane of STEP adds the inclusion of the proposals around marriage was a success for campaigners, citing the work of Daphne Franks. Further safeguards including enhancements to capacity assessments and better training for registrars to help recognise and help prevent predatory marriage were recommended by STEP in the will reform consultation process. But there needs to be acknowledgement of STEP’s own research which showed the profession is split on the subject which could lead to  increased inheritance disputes and litigation

“The potential risks and unintended consequences need to be addressed and any changes need to be supported with a strong awareness campaign by the government.”

adds Deane. Indeed contentious practitioners have warned the proposals include much room for litigation with Hayley Robinson, private wealth disputes specialist at Stevens & Bolton LLP suggesting what the ‘proposals for electronic wills will mean in practice is very much up in the air.’

It is one of the most complicated aspects of the report say STEP.

“It’s vital that people understand what an electronic will means. We need robust safeguards to ensure sensitive data is stored securely, and that the public, especially the vulnerable, are protected. It is good to see that the process for making a paper will is unaffected, and that electronic wills will only be valid if they are registered and stored on a government-authorised central storage system.”

“The additional formality requirements put forward are sensible. The Law Commission will also need to ensure that the software and provisions are robust against fraud and undue influence. Further consultation is needed to ensure that any new system, its design, functionality and security meets the needs of the public and practitioners. We will be monitoring developments carefully.”

In a similar way giving courts dispensation powers and rectification needs to be clearly defined say Hayley Robinson.

“We would flag the risk of a large increase in potential litigation. More flexibility around testamentary affairs can only be a good thing, but where any recommendation includes giving the Court a jurisdiction to approve formerly invalid Wills in “exceptional” circumstances, it must be assumed that litigation will follow around what “exceptional” really means.”

The broad consensus appears to welcome the report and many of the proposals; but any proposed reforms must be complemented by efforts to raise public awareness or risk further burdening the courts conclude STEP.

People need to be made aware ahead of any changes to the law, the impact, and the importance of having a will and keeping it updated. This will ensure that any changes do not lead to an increase in inheritance disputes and litigation, further strain on the legal system, confusion and distress for bereaved families.’