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The Law Commission’s Modernizing Wills Law Report: Recommended Reform

A Will is one of the most important documents that a person might prepare in their lifetime. The law on making a Will in England and Wales is based on statute and case law, with the Wills Act 1837 (“Act”) governing the key formalities.

The Act has not been updated since its introduction and it has long been debated that the legislation should be modernised.

The Law Commission’s Wills Project on the proposal for reform commenced in 2016, and the Commission released its final, two volume report on 16 May 2025 (the “Report”). The Report includes the Commission’s recommendations for reform and a draft Bill for a new Wills Act. It is suggested by the Commission that the new Bill should introduce a more streamlined, comprehensive and modern legal framework for making Wills in England and Wales.

A link to the Report and related documents is here Wills – Law Commission

The key recommendations that the Commission has made in the Report are:

  • That the legal age to make a Will be reduced to 16 years and for the Court to have the power to authorise the making of a Will by younger testators in specific circumstances.

  • That a gift in a Will should be invalidated not only if it is made to the witness of a Will or their spouse/civil partner but also if the gift is made to:

  • The witness’s cohabitant; or

  • a person who signed the Will on behalf and at the direction of, the testator; or

  • the spouse/civil partner or cohabitant of the person that signed the Will on behalf and at the direction of the testator.

  • That marriage should no longer revoke a Will.

  • That the test for testamentary capacity should be the test set out in the Mental Capacity Act 2005 (“MCA”), with reference to the elements set out in the Banks v Goodfellow test to support guiding principles and the operation of the MCA test in practice.

  • That a statutory presumption of capacity should apply to making a Will.

  • That a Code of Practice should be established on assessing capacity under the MCA.

  • That provision be made for electronic Wills, using a ‘reliable system’ to ensure the security of the Will and that virtual witnessing be permissible.

    • A ‘reliable system’[1]  is recommended to be one that:

    – links any signature with the person, at the time of signing

    – identifies the Will so that it can be distinguished from copies; and

    – protects the Will against any alterations other than by the testator or person authorised by them.

    And that the Court be provided with:

  • An overriding dispensing power to validate a Will that does not comply with all the formality requirements, if the testamentary intentions are clear despite this.

  • The power to rectify a Will that does not give effect to the testator’s Will due to a drafting error (as well as a clerical error).

  • The power to infer that a Will was brought about by undue influence where there are reasonable grounds to suspect so.

  • The power to save a gift to a witness or person that signs on a person’s behalf if it considers it just and reasonable to do so.

    • As the Commission cites in the Report, it appears that the proposed reforms, and specially the draft new Bill should not only offer modernisation but also clarify certain legal points, bolster guiding principles and increase protections for vulnerable testators. The key theme of the report is supporting testamentary freedom, the key principle of Wills law in England and Wales.

    The Government will review and consider the recommendations and provide their response as to whether the proposals for reform are accepted. We shall await further updates.

    Any reform to the Act will provide an opportunity for clients to review their Will, to ensure that it accords with their wishes and offers the preferred estate planning solution considering current circumstances and current law. It will be crucial for advisors to keep abreast of the developments and to proactively engage with clients to facilitate the Will review process.

    If you have any questions on these proposals, please contact Natasha Southam ([email protected]) in our private client team for further advice.

    The information contained in this article is provided for informational purposes only and should not be construed as legal advice on any subject matter. No recipients of content from this article, clients or otherwise, should act or refrain from acting on the basis of any content included in the article without seeking the appropriate legal or other professional advice. The content of this article contains general information and may not reflect current legal developments, verdicts or settlements.

    Content supplied by Seddons GSC LLP