Modernising Wills report

In May 2025, the Law Commission released its report, accompanied by a draft Bill recommending an overhaul of the current law surrounding wills. The current law is governed largely by the Wills Act 1837 and the view of the Law Commission is that such old legislation is now outdated and unsuitable to provide the legal framework in modern times. B P Collins’ contentious probate team explores the Law Commission’s report and what the proposed changes might mean for contested probate claims.

Summary of the proposed changes

The Law Commission has recommended wide ranging and sweeping changes. The report runs to 494 pages with a draft Bill for a new Wills Act spanning a further 87 pages. Some of the main proposals include:

Allowing a court to dispense with the formality requirements for wills

Currently, a will is required to comply with the formality requirements set out by the Wills Act 1837 including that the will must be signed by the testator in the presence of two witnesses. The report suggests that a court should be able to declare a document to be a valid will even where it does not comply with the formalities, if it is clear that the testator intended the document to relay their testamentary intentions.

Allowing children to make wills

Currently you must be over 18 years of age to make a will in England and Wales (save for some rare cases of under-18s being in active service in the armed forces). The report proposes lowering the age from 18 to 16 with the court being able to authorise a child younger than 16 to make a valid will.

Expanding the category of mistakes which are capable of rectification

Currently a mistake in a will may be rectified by a court where it is as the result of a clerical error or a failure to understand the testator’s instructions . The report points out that this leaves a gulf in cases where the will writer understood the testator’s instructions but used the wrong words to put them into effect, meaning that the instructions did not take effect as intended or at all. The report proposes expanding the ability of courts to rectify a will where the court is satisfied that a mistake has occurred because the will writer failed to understand the effect of the language they used when drafting the will.

Undue influence

The report comments that it is difficult to prove undue influence in wills, especially as it is often the case that the evidence is mostly circumstantial and proposes that a court should be entitled to make a finding of undue influence where it considers that there are reasonable grounds to suspect it.

Marriage and wills

Under the current law, entering into a marriage or civil partnership will automatically revoke any will entered into prior to the marriage or civil partnership (unless the will was made in contemplation of that marriage or civil partnership). In response to concerns around the growing prevalence of predatory marriages, t he report proposes that a will should not be revoked by marriage or civil partnership.

Capacity to make a will

Presently, the test as to whether a person has mental capacity to make a will is governed by the Banks v Goodfellow test. The report argues that the test in the Mental Capacity Act 2005 should be adopted in place of the Banks v Goodfellow test in order to bring parity to the law on capacity generally and because the test in the Mental Capacity Act is (in the views of the Law Commission) clearer.

Electronic wills

Given that the current law was written almost 200 years ago, the Wills Act 1837 does not allow for a will to executed electronically. The Law Commission argues that this is outdated and that the primary concern should be the testator’s freedom and that people making wills should have more freedom to do so however they please. Therefore, the report proposes putting in place provision to allow wills to be made, signed and stored electronically.

How will this impact will disputes?

The proposed changes, if effected, could well lead to an increase in contested probate litigation. For example:

1. If the formalities of the Wills Act 1837 can be dispensed with where a document appears to reflect a testator’s true intentions, there is likely to be substantial litigation over the question of the testator’s true intentions. It will likely take years of Judicial guidance given through reported contested probate cases to allow lawyers to be able to accurately advise clients on the approach the court is likely to take in any given case.
2. In cases where a child under the age of 16 is proposing to make a will, there may be scope for substantial and lengthy litigation concerning their circumstances, mental capacity and whether the making of a will is in their best interests.
3. The expansion of the types of mistakes which are capable of rectification could lead to an increase in claims for rectification (though presumably with a corresponding decrease in claims for negligence which is the current option for mistakes which are not capable of rectification).
4. There is significant debate within the legal industry regarding whether the proposed changes to the law on undue influence represent a change at all, or merely a clarification of the existing position. However, if there is a statement from the Government that the court should make findings of undue influence where the facts support the allegation, this may serve to encourage prospective claimants and could lead to an increased number of undue influence challenges.
5. It is anticipated that if a will is not revoked on marriage, there may be fewer claims concerning wills which have been revoked as a result of a predatory marriage. However, the consequence of this is that there is likely to be an increase in claims pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 , from spouses whose deceased spouse has failed to update their will following the marriage, resulting in the surviving spouse being excluded from the estate.
6. The proposals surrounding the making of electronic wills are perhaps most rife for potential claims. The making and storage of electronic wills will be unchartered territory for the legal industry. The Law Commission states that there must be a “reliable system” for the use and operation of electronic wills before this can be implemented. However, it is expected that any new system will have teething problems. Further any ‘normal’ will dispute (for example a validity challenge) involving an electronic will is likely to require an analysis of the metadata relating to the will, which will also likely involve expert IT evidence. There is likely to be a corresponding increase in the complexity and therefore the costs in any claim requiring expert metadata analysis.

It should be noted that that the Law Commission report is only a proposal at this stage. The Wills Act 1837 remains the present law and those seeking to make a will should not rely on any of the proposals in the report coming into force. Even if the proposals are adopted in their entirety, it is likely to be some years before any are formally brought into force, especially given that the Government will need to build the proposed “reliable system” for dealing with electronic wills.

If you require advice in relation to an estate or will dispute, please contact our contentious probate lawyers at enquiries@bpcollins.co.uk or 01753 889995.