Law Commission proposes changes to wills

The Law Commission has released a report proposing essential changes to modernise wills law and promote testamentary freedom in England and Wales, the fundamental principle that allows individuals to decide how their estates will be distributed after death. The current laws, dating back to the Victorian era, have not undergone a thorough review for nearly 200 years. In light of modern societal changes, the commission asserts that reform is crucial. With increased longevity, a growing number of individuals may face health declines, and the nature of property ownership has evolved. Moreover, the rise of electronic documentation necessitates a re-evaluation of existing laws.

The proposed recommendations include enabling electronic wills to ensure they are valid when adhering to additional formality requirements for testator protection. Furthermore, the commission suggests abolishing the automatic revocation of wills upon marriage or civil partnership, expressing concern over "predatory marriages," where individuals marry solely for inheritance benefits. The report calls for a simplified mechanism to validate a deceased person’s clear intentions, even if their will does not meet traditional formality requirements.

Additional recommendations aim to lower the minimum age for creating a will from 18 to 16, acknowledging that terminally ill minors should have agency over their final wishes. The commission also highlights the need to clarify mental capacity requirements concerning wills, suggesting one unified test under the Mental Capacity Act 2005. Increasing protections against undue influence on vulnerable individuals when making wills is also advocated, allowing courts to infer coercion based on reasonable suspicion.

Professor Nick Hopkins, Commissioner for Property, Family and Trust Law, stated, "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 submitted to Parliament alongside a draft bill, leaving the decision to the Government on whether to enact these changes.