The long-awaited Law Commission Report on modernising the law relating to Wills, published on 16 May 2025, certainly did not shy away from making some radical and (mostly) welcome recommendations. If approved, the proposals will represent the most significant and comprehensive changes to the Wills Act since it was introduced in 1837.
The recommendations are aimed at reforming the legislation so that it better reflects modern life and encourages testamentary freedom, whilst simultaneously offering enhanced protection for elderly and vulnerable testators in a society with increasing life expectancy. The changes also recognise developments in technology by proposing provision be made for electronic wills.
The key recommendations are:
- The Court to have power to “dispense” with formality requirements on execution
- The age to make a Will lowered from 18 to 16
- The Court to have power to rectify a will because of an error in drafting beyond the current more limited circumstances where this is possible
- Lowering the threshold test for undue influence
- Abolishing the rule that marriage revokes a will
- The Mental Capacity Act 2005 test to be the test for testamentary capacity
- Provision for electronic wills with a system designed to ensure security
Practitioners should, overall, be encouraged by the reforms proposed by the Report. They seek to address some of the challenges that can arise in the creation/revocation of Wills whilst also ironing out inconsistencies. The potential impact of the recommendations is significant and, mostly, positive. However, if approved, the likelihood that some of these changes will result in increased litigation seems almost inevitable.
Perhaps most welcome is the proposed abolition of the rule that marriage revokes a will. Not only did the consultation process suggest that this was a law most people were not familiar with, it can have disastrous and often unintended consequences. Instances of financial abuse have increased in recent years (particularly around the COVID pandemic) and the current rule facilitates exploitation of the elderly and vulnerable by way of “predatory marriages”. As matters stand, the fact of the marriage instantly revokes any existing will and the predatory spouse becomes the principal beneficiary of their spouse’s estate under the intestacy rules (potentially disinheriting children from previous relationships). The injustices created by this rule are exacerbated by the fact that the test for capacity to marry is lower than the capacity required to make a will, meaning that, once the predatory marriage has taken place, the victim to that marriage may lack capacity to execute a new will and their family’s only remedy is to seek the intervention of the Court of Protection for a statutory will to be made, assuming the testator is still alive.
The ability in the proposals of the Court to infer undue influence, provided there is evidence of reasonable grounds to suspect it, addresses the often-insurmountable evidential challenge claimants currently face in proving coercion (because it takes place behind closed doors). This may result in wills that are genuinely the product of coercion and influence being admitted to probate. This recommendation is encouraging, though an increase in litigants prepared to plead undue influence seems a likely consequence of a lowering of the threshold test.
The challenges of introducing electronic wills should not be underestimated and the Law Commission’s report leaves more questions than it answers in this regard, albeit the direction of travel towards a digitalised system seems incontrovertible. One can well see that the introduction of electronic wills and the ability to prove or challenge them could represent the future of contentious probate. The suggestion that a reliable system is used to secure the electronic wills also raises the question of why there is no such system for existing paper wills, and will not necessarily be foolproof in determining whether a Will exists.
Finally, the “dispensing power” of the Court to approve otherwise invalid wills failing to comply with the formalities required to execute a Will should be viewed through a cautionary lens. With suggestions that the Court would be able to look at any record made by the testator which expresses their testamentary intentions, the potential uncertainty created by such a dispensing power must increase the prospect of litigation and attempts to adduce a will where one would not otherwise be valid.
Hayley Robinson is a Senior Associate at Stevens & Bolton
