Following much anticipation among Private Client legal experts, the Law Commission published its latest report last Friday (16 May 2025), ‘Modernising Wills Law’, the culmination of a project that started nearly a decade ago in early 2016.

The main legislation governing Wills today was enacted in the Victorian era in 1837 and with almost 200 years having passed since then, the near-500 page report sets out the Law Commission’s views on reforming and clarifying the law concerning Wills so that it is ‘fit for purpose in the modern age’.

Most people agree that reform in the area of Wills is desperately needed for a variety of reasons, including:

• Longer life expectancies and the associated rise in the number of people diagnosed with conditions that impair mental capacity;
• Increasing transfer of wealth between generations;
• The impact of economic and political factors, including the value of assets (notably long-term rises in property values), and Government policies such as in regard to pensions; and
• Technological considerations, notably the rise in the different classes and ownership of digital assets.

A total of no less than 31 recommendations have been made to Parliament in the Law Commission’s report. Below we review the key proposals:

Provision for Electronic Wills

Despite the overwhelming prevalence of documentation in electronic form nowadays and the increasingly digital world we live in, it is not currently possible for a Will to be made electronically under English and Welsh law.

The Wills Act 1837 says that a Will must be ‘in writing’ but this does not extend to testamentary wishes set out in digital form.

The Law Commission believes that should change citing the COVID-19 pandemic which demonstrated an advantage in Wills being temporarily witnessed remotely. It also refers to other jurisdictions in which the law permits electronic wills, including the United States, Canada and Australia.

Nevertheless, the Law Commission stresses the need for a ‘reliable system’, to ensure an electronic Will can be distinguished in its original or authentic form. They also stress the importance of ensuring that relevant safeguards are in place to protect against alteration of destruction which is not intended or authorised on the part of the person making the Will.

It also asserts the need for a system such that the person signing a Will (or person authorised to do so on their behalf) and the witnesses can be linked to their respective signatures at the time of signing.

Removal of Automatic Revocation of Wills on Marriage/Civil Partnership

The current position is that a person’s Will is revoked automatically when they enter into a marriage or registered civil partnership, unless the Will has been made in express contemplation of the same with a declaration to this effect included in the Will itself.

This existing rule has potentially significant consequences. For example, if person’s Will is revoked upon their marriage or civil partnership with another person then unless a new Will is subsequently made prior to death, that person would die intestate (i.e. without having left a valid Will) and their assets would pass in accordance with the statutory order of entitlement under the intestacy rules, which may be at odds with the deceased’s wishes.

As the Law Commission has identified in its research, it is clear that many people are unaware of this rule and, given the alarming rise in ‘predatory marriage’, where a vulnerable person can be exploited into marrying someone against their will, it recommends that this rule be abolished. 

Updating Testamentary Capacity

Testamentary capacity refers to a person having the mental capacity to understand the specific act of putting a Will in place.

At present, the accepted test for testamentary capacity is based on that set out in the case of Banks v Goodfellow (1870) and, in essence, says that a person making a Will must be:

• Aware of the extent of their assets;
• Know who they ought to consider benefitting from their Will;
• Understand the purpose of a Will and its effect, and;
• Not be suffering from any delusions affecting the proposed disposition they are looking to make under the Will.

This contrasts with the formal test for mental capacity under the Mental Capacity Act 2005 which states that a person is unable to make a decision if they cannot:

• Understand the information relevant to the decision to be made; and/or
• Retain that information for long enough to make the decision to be made; and/or
• Use or weigh up that information as part of the process of making the decision; and/or
• Communicate the decision to be made in any way.

Whilst Banks v Goodfellow is invariably the test for testamentary capacity quoted in contentious probate cases, the test for capacity in the Mental Capacity Act 2005 is used by the Court of Protection in matters concerning vulnerable clients and the Law Commission says that the existence of these two separate tests is ‘unprincipled and confusing.’ 

Instead, it advocates for use of the latter Mental Capacity Act 2005 test in the context of making a Will, including the starting point of presumption of capacity unless the contrary can be shown. The recommendation is that a Code of Practice for testamentary capacity then be issued under the Mental Capacity Act 2005 to set out guidelines for the assessment of the same and should be something that ‘anyone preparing a Will or assessing capacity in their role as a professional or for payment should be required to have regard to.’ Such guidance, the Law Commission says, should include when testamentary capacity needs to be formally assessed, who should assess it and how this should be done, and how long a formal capacity assessment should take.

Other recommendations

Some of the other proposals made by the Law Commission concern the following:

• Lowering the age at which a person can make a Will from 18 years to 16 years old, in addition to providing the Family Court with the power to authorise a child under the age of 16 to make a Will.
• Extending the power of the Court to rectify a Will, in circumstances where a Will fails to achieve the intentions of the person making the Will because the words used in the Will do not have the meaning or effect intended.
• Providing the Court with the power to dispense with formality requirements necessary for a valid Will.

What happens next?

The Law Commission says that its recommendations ‘will modernise Wills law to promote testamentary freedom, bringing with them greater certainty, clarity and fairness’.

Of course, the Law Commission’s recommendations are just that at this stage – only recommendations. It will be up to Parliament to decide which, if any, of these recommendations it proposes to form legislation. Undoubtedly, there will be robust debate as to the suitability and merits of enacting some of the proposed changes.

In the meantime the current law will continue to govern the making of Wills. Factors such as increasing life expectancies and the growing inter-generational transfer of wealth, coupled with increasing values of assets and the ever-expanding reach of technology, highlight how important it is to ensure your affairs are in order. Finally, the value of seeking legal advice when drafting a Will should not be overlooked and should be given due consideration.

If you would like any assistance with making or updating your Will, or with other associated matters such as wider estate and tax planning, then please do not hesitate to get in touch with our Private Client department.