What to expect from the Law Commission’s upcoming report

The Wills Act has remained largely unchanged for over 150 years. The Law Commission first tackled its reform in 2017, paused to address marriage law, and revisited it with a supplementary consultation in 2023. The result will likely be a comprehensive overhaul of how wills are made and interpreted in England and Wales in it’s upcoming report expected to be published in May, according to Stephen Lawson and Elizabeth Gibbison speaking on the latest Today’s Wills and Probate Podcast. 

Lawson, a partner at IDR Law and Chair of the Law Society Wills & Equity Committee and Gibbison a solicitor at Irwin Mitchell and Chair of Law Society Private Client Solicitors Section Advisory Committee have both been privy to some of the Law Commission’s work and joined podcast host David Opie to discuss what we might expect from the most comprehensive review of the Act since its inception in 1837.

The report comes at a hugely exciting time for private client with electronic wills, matrimonial revocation of wills, recognition of cohabitees, testamentary capacity amongst the issues at play, alongside the extensive changes to inheritance Tax (IHT) and pensions by the current Labour government. A central feature of the new bill is the legal recognition of electronic wills. While the Law Commission supports their introduction, the specific technical requirements – such as identity verification and safeguards against fraud – will be left to statutory instruments, meaning further regulation from Parliament will be required.

It’s important, says Lawson, the we understand what is meant by electronic wills. This is not about the use of digital tools to create wills, for example the use of a voice note on a mobile phone to record a last will and testament. The 2017 recommendations said there should a dispensing power;

“…in other words, a power by a judge to dispense with the formalities that apply to the law. For example, we all know at the moment if a will is only witnessed by one witness rather than two, then it’s invalid no matter how much the testator wanted that will to be valid. In future, (the report might include provision) the court has the power to dispense with formalities and recognise as valid a will that would otherwise be invalid. Because what the dispensing power could do if somebody discovered on my mobile phone, or my laptop, a document that doesn’t comply with the statutory formalities, but which there is acceptance of the intention for it to be my last will and testament, the court might have power to recognize that.”

The discussion moves to explore the risks of abuse when digital processes are introduced without sufficient oversight, especially for vulnerable individuals. While introducing digital presents challenges for an aging population, greater digital literacy rates amongst older generations who have increasing grown up with technology will help with any transition and, adds Gibbison, electronic systems could offer more robust identity checks than traditional paper-based methods. The current debate on the revocation of a Will after marriage is another area the Law Commission’s report is expected to tackle; especially where there are cases involving predatory marriages and dementia.

A key point of contention is whether to retain the long-established Banks v Goodfellow test or move toward the more modern Mental Capacity Act 2005 framework. Lawson argued in favour of Banks v Goodfellow for its clarity and practicality, while Gibbison proposed a hybrid approach, using both tests complementarily. The Commission is also likely to recommend that courts be granted the power to dispense with certain formalities, allowing them to validate wills that clearly reflect a deceased’s intention – even if they technically fall short of legal requirements. The current legal age to make a will is 18, but the Commission may recommend lowering it. This would align with changes in other areas of legal capacity, though it raises questions around consistency with age restrictions in marriage, voting, and powers of attorney.

One area that remains hugely challenging is undue influence; one of the easiest issues to raise, but one of the most difficult to prove with the The Law Commission expected to propose reforms to better address coercion and control – especially as wills move into the digital domain.

It promises to be an interesting time in wills and probate with major changes on the horizon for practitioners including.

• Inheritance tax reforms from the Autumn 2024 Budget
• Non-Dom regime changes
• The Assisted Dying Bill returning to Parliament
• Digital transformation across the courts and probate services
• Potential rights for cohabiting couples on intestacy
• Revisions to the non-contentious probate rules for the first time since 1987

The Law Commission’s Elizabeth Welch will be presenting at the upcoming TWP Festival in June on the output of the Law Commission’s report. For more information about TWP Festival, and to book your ticket CLICK HERE. 

You can listen in to the full discussion on the Today’s Wills and Probate Podcast below, on Apple, Spotify and YouTube and wherever you get your podcasts