Making a will in the 21st century: considering proposals for a new Wills Act

The Law Commission has published its long-awaited recommendations to reform the law of wills in a report: Modernising Wills Law

The recommendations are designed to promote individual testamentary freedom, protect vulnerable people making wills and increase clarity and certainty in this area of law. 

The government is set to provide an interim response to the report by mid-November 2025 and a full response by May 2026. In the meantime, we look at the key proposals and what they could mean for our clients.

Electronic wills

• It should be easier to make a will electronically, and then change it, with no need to create a hard copy document, which can easily be lost! We can expect provision for digital signatures, digital witnessing (for example, by a video call, as was temporarily the case during the coronavirus pandemic), and safeguards to minimise the risk of fraud, undue influence and wills being destroyed.

• A concern here is the potential for undue influence of a vulnerable individual, for example if the whole process takes place online, without a face to face meeting with a lawyer. This issue could be addressed by the use of recorded video calls where all people present in the virtual 'room' are identified.

• We will follow these developments closely and review the available technology with a view to offering this service, provided there is a secure, reliable system in place.

Wills for Children

• 16 and 17 year olds would be able to make a will. Additionally, the court would have a power to authorise children aged 15 or younger to make a will, provided they are 'competent' to do so.

Dispensing with formal requirements for wills in some cases

• The court would have the power to declare a document (including an electronic document) to be a valid will, even if it does not satisfy formal requirements, for example, where it has not been correctly signed.

• This change is aimed at preserving individuals' ability to determine what happens to their estate on their death. The court must be satisfied that the document reflects the individual's settled testamentary intentions.

Marrying or entering into a civil partnership would not revoke a will

• The current position is that a person's will is automatically revoked when they marry or enter into a civil partnership. This has contributed to the problem of predatory marriages, where someone seeks to marry or enter into a civil partnership with a vulnerable person simply to inherit from their estate.

• This is a welcome development to address the problem of predatory marriages, which can involve individuals who have capacity to marry, but lack capacity to make a will. 

• It will be important for all couples getting married or entering a civil partnership to review what will happen to their assets on their death. Where a spouse or civil partner receives little or no provision it is possible for them to bring a claim under the Inheritance (Provision for Family and Dependants) Act, but this typically involves incurring legal costs and sometimes a hotly contested dispute with the beneficiaries named in the will.

Changes to rules around attesting witnesses and others receiving gifts in a will

• Currently, any gift to a witness to the will, to their spouse or to civil partner is void. This rule would be extended to include the witness's cohabitee and anyone who signs a will at a testator's direction (plus their spouse, civil partner or cohabitee). The court would have power to dispense with the rule where it considers that would be just and reasonable.

Clarifying existing law on undue influence and rectification of wills

• The existing caselaw would be set out in a statute, to include a presumption that undue influence arises in certain circumstances. When considering whether undue influence is present, the court would be able to consider the circumstances surrounding the making of the will.  This development offers more protection to testators but could give rise to additional claims.

• The court's ability to rectify a will would be extended to circumstances where the error resulted from a failure to understand the meaning, or the direct effect of the language used in the will. This is a protective measure but, again, could give rise to more claims.

Updating the standard of capacity to make a will

• The present position is that an individual's capacity to make a will is determined in accordance with the test in the 1870 case of Banks v. Goodfellow. Under the new recommendations, the test in the Mental Capacity Act 2005 would be applied, which is arguably more rigorous.

Conclusions

The proposed changes are exciting and extensive, in an area of law which is heavily based on nineteenth century legislation and caselaw. It makes sense to be able to create an electronic will when most communications and documents are created and stored digitally.

If the Law Commission's proposals are adopted in full, it should be easier for people to make a will and ensure that it is stored safely and easily located.  However, there is a tension between this provision and the objective to protect vulnerable people.  As we have outlined above, some of the protective measures could result in more disputes.

It remains important to make a will and to regularly review it to ensure it meets your needs. Please contact Rachel Brooks (private client specialist) or Alexandra Rogers (contentious trusts and probate specialist) if you have any questions about making a will, administering an estate or seeking to resolve a dispute.

If you work in the charity sector, you may be interested to read Gavin Holt's article about the key implications of the proposed legislation for Charity Legacy teams: The Wills Bill – The key implications for Charity Legacy teams