Modernising wills: revolutionary or evolutionary?

The Law Commission’s 2025 report, Modernising Wills Law, which was accompanied by a draft Wills Bill, was published on 16 May 2025 and marks the most substantial proposal for the reform of testamentary law in England and Wales in almost 200 years. While many of the proposals aim to modernise the law to reflect societal and technological change, they also preserve fundamental principles, such as testamentary freedom, protection of the vulnerable and legal certainty. The Commission’s recommendations arguably signal both evolution and revolution in equal measure.

From the legalisation of electronic wills to the introduction of court dispensing powers and a radical shift in how undue influence is treated, the proposals promise to reshape how we think about the making, and the contesting, of wills in the 21st century. However, some changes are more conservative and important questions remain about how the reforms will work in practice, if enacted.

This article explores a number of the key recommendations, their potential impact and whether they go far enough to address the challenges of modern testamentary practice.

Why reform now?

The law of wills has remained largely unchanged since the Wills Act 1837, with only occasional tweaks, such as the Wills Act 1963 and case law refinements. The Law Commission’s report and recommendations respond to long-standing criticism that the existing law is outdated, largely a product of the Victorian age, overly rigid and, therefore, unsuited to modern society’s needs.

The report highlights that reform is required to take account of the changes to demographics, society, technology and medical understanding that have taken place since the Wills Act 1837 came into force.

With longer life expectancy, most people today will live longer than their ancestors did and, as a consequence, more people will suffer from ill health and a decline in their mental acuity that are commonly associated with old age. 

The property that the average person owns, particularly their home, may be more valuable than it was in the past and people’s financial profile tends to be more sophisticated and complicated than ever before. 

Historically documents of a legal nature were always in paper form, but documents in electronic form are now far more prevalent in many other areas than paper documents. 

Reform is therefore imperative to take account of these societal changes and the report seems to rest on three foundational aims:

1. promoting testamentary freedom, ensuring individuals can express their wishes more easily;

2. protecting the vulnerable, particularly against fraud and undue influence; and 

3. improving clarity and consistency, aligning wills law with other areas, such as mental capacity and digital innovation.

Key recommendations

Testamentary capacity: alignment with the Mental Capacity Act 2005

The Law Commission recommends replacing the common law test applicable from Banks v Goodfellow (1870) with the Mental Capacity Act 2005 (MCA) functional test. The MCA test assesses whether the person can understand, retain, use and weigh relevant information and communicate their decision.

This change promotes consistency across legal contexts from wills, contracts to healthcare decisions. It also accommodates the modern understanding of fluctuating or supported capacity.

Some have expressed concern that the MCA test may not adequately reflect the specific nature of testamentary decision-making, particularly in relation to understanding the scope of one’s estate and the claims of others.

While the move promotes doctrinal harmony, arguably it risks over-simplification. Judges and practitioners are familiar with Banks v Goodfellow and its contextual richness with years of case law on various intricacies of the test. Adopting the MCA model without additional guidance may generate new uncertainties, rather than resolve old ones.

Revocation by marriage: a welcome end

Under current law, marriage or civil partnership automatically revokes a prior will, unless made in contemplation of that marriage or civil partnership. The Commission recommends abolishing this rule.

This change is intended to help protect vulnerable individuals, particularly the elderly or those with dementia, from ‘predatory marriages’ that void previous carefully drafted wills. It aligns the law with the increasing prevalence of later-life relationships and second marriages.

This reform is both progressive and protective. It reduces the risk of exploitation and better reflects societal realities. Practitioners should still advise clients to update their wills upon marriage to ensure their wishes are up to date and reflective of new relationships, but the removal of automatic revocation appears, on the face of it, to be an important safeguard. 

Thought will need to be given to the interaction with the Inheritance (Provision for Family and Dependants) Act 1975 and we will likely see an increase in spousal claims under these provisions where spouses haven’t been adequately provided for within a will.

Minimum age and statutory wills

The Commission has recommended that the minimum age to make a will is reduced from 18 to 16. This reflects the reality that many 16- and 17-year-olds now have property, savings or digital assets.

The recommendations are for individuals making a will and also look to provide the Court of Protection with the ability to authorise statutory wills for individuals lacking capacity to those aged 16 or 17.

In Scotland, you can make a will from the age of 12 years old. This is unusual by international standards and has raised some practical and legal questions around understanding, maturity and changing circumstances. However, case law seems to suggest that it hasn’t caused significant problems in practice because the use of these provisions is not frequent and usually only as a result of serious illness or unusual wealth. 

The Commission’s proposed changes are therefore proportionate and logical, but do not go as far as some other jurisdictions. However, careful advice will be required by private client lawyers as younger testators may be particularly susceptible to influence or misunderstanding. Lawyers will need to ensure that advice is appropriately tailored and parental involvement is managed carefully.

Rectification: extending court powers

The report also recommends expanding the ability of courts to rectify wills where there are clerical errors or mistakes made by the drafter. Under the current law, courts can only fix clerical errors or misunderstandings of the testator’s instructions. Under the new proposals, it would be mean that courts may also correct errors where the will drafter understood the testator’s intention but used the wrong words, so the will fails to reflect what was intended. 

These changes reflect existing practice and judicial discretion and should help to avoid unjust outcomes. The proposals align with the broader goals of modernising the law to protect testators and promote clarity. However, they will require careful judicial oversight. This is not intended to be a free for all and the court must find clear evidence of the testator’s intention. 

It’s a sensible extension that aligns with other reforms aimed to prevent injustices stemming from technicalities. However, these changes, would only be applicable to wills that are formally valid, so improperly executed wills would require the new dispensing power to correct, rather than rectification. 

The dispensing power: flexibility over formality

The Law Commission recommends giving courts a ‘dispensing power’ to admit wills that do not meet all the formal requirements, provided there is clear evidence of testamentary intent.

This reform brings English law into line with other jurisdictions such as Australia, New Zealand and parts of Canada, where courts have long had this discretion. It recognises that strict formalities can sometimes thwart genuine wishes, such as when a testator dies after preparing a will but before it is witnessed.

In Australia, courts have validated wills in emails, unsent text messages and even notes on iPhones. These examples illustrate both the power and the danger of a dispensing provision. While it prevents injustice, it may also open the door to increased litigation and disputes over informal documents.

This is a welcome and pragmatic reform. It reflects the reality that form should not override intent. But evidential rigour must be maintained and courts will need clear guidance to be able to put this into practice. Private client lawyers will continue to need to advise clients on the dangers of relying on informal documents.

Undue influence: shifting the burden

Perhaps the most striking proposed legal change relates to the doctrine of undue influence. The Law Commission proposes that courts be allowed to infer undue influence based on the facts, shifting the burden of proof to the person benefiting from the will.

Currently, the bar for proving undue influence is extremely high, requiring ‘coercion’ tantamount to overpowering the testator’s free will. Few cases succeed. The proposed change aligns more closely with equitable doctrines of undue influence and acknowledges the reality that coercion is often subtle and relational.

The implications for practitioners are significant. Where a beneficiary is heavily involved in the drafting of a will, particularly in cases involving vulnerable testators, there is a heightened risk that they will bear the burden of disproving undue influence.

This is a bold and necessary reform. It empowers courts to respond to suspicious circumstances without needing a ‘smoking gun’. But for practitioners, it raises the stakes. Detailed attendance notes, evidence of independent advice, and consideration of safeguarding procedures will be more important than ever.

Electronic wills: embracing the digital age

Arguably the most revolutionary proposal is the formal recognition of electronic wills. The draft bill allows for wills to be made entirely electronically, including through electronic signatures and potentially remote witnessing, subject to rigorous standards to ensure integrity and authenticity.

This change promises significant benefits, especially for those with limited mobility, individuals in remote locations, or younger generations accustomed to digital transactions. It reflects similar reforms seen in jurisdictions like several US states, Australia, and New Zealand.

However, this shift brings significant risks. Without detailed regulations on platform security, identity verification and long-term digital storage, there is a genuine risk of fraud or coercion. The Law Commission rightly emphasises the need for ‘reliable and secure’ systems, but the onus will be on the government and regulators to define what that means in practice.

This reform is genuinely transformative. It could open up access to testamentary freedoms, but only if paired with robust technological and procedural safeguards. Standards around digital signatures, encryption and authorised platforms will be critical. Without them, public confidence could be easily eroded.

Do the reforms go far enough?

In many respects, the reforms are ambitious. The introduction of electronic wills, the proposed introduction of court dispensing power and the changes to undue influence mark a seismic shift in both doctrine and practice.

However, it can be argued that some areas may have benefitted from bolder thinking:

• Digital verification and e-signature standards are left to future regulations and, without specifics, the reform risks creating confusion or a lack of uniformity.

• Testamentary freedom vs family rights remains unaddressed. England and Wales retain minimal forced-heirship rules, but the growing complexity of family structures could call for further reform of the Inheritance (Provision for Family and Dependants) Act 1975, for example.

• Statutory guidance will be essential, especially on the application of the MCA 2005 to testamentary capacity and the operation of the dispensing power.

What will this mean in practice?

For private client lawyers, the implications are potentially profound:

• Attendance notes and due diligence will be more important than ever. Practitioners must protect both themselves and their clients through careful documentation, especially regarding capacity and influence.

• Digital platforms must be scrutinised. E-wills will require secure and reliable electronic systems and will be required to be capable of withstanding forensic scrutiny in court.

• Training and guidance will be key. Law firms must invest in training their teams to navigate the new landscape, from new witnessing rules to advising younger clients.

• Increased litigation is likely in the short term. More flexible doctrines and digital innovations may spur more will challenges, particularly in relation to informal wills and burdens of proof.

What’s next

The Law Commission’s report is only recommendations and, at this moment in time, the current law remains unchanged. The government has already published an initial response to the report, which suggests there is perhaps motivation and intention for change to come about in the not-too-distant future. It is, therefore, now for government to review and consider the Commission’s recommendations and draft Bill for a new Wills Act and to provide a full response, which is expected within 12 months.

Conclusion

The Law Commission’s report on wills reform is both timely and necessary. It reflects a society that is increasingly digital, diverse and demographically complex. By aligning legal rules with lived realities, the Commission has gone some way in delivering a blueprint that promises greater fairness, flexibility and accessibility. The Commission’s recommendations arguably signal both evolution and revolution in equal measure.

However, bold reforms demand careful execution. Without clear regulations, reliable systems and sustained practitioner vigilance, the risk, such as fraud, confusion and contested estates, may outweigh the benefits.

But do the recommendations go far enough? The devil will be in the detail, if implemented wisely these reforms could usher in a new era of testamentary autonomy, where genuine wishes are respected, vulnerable individuals are protected and legal certainty is no longer held hostage by 19th century formality.