Earlier today (16 May 2025), the Law Commission published a draft bill which, if enacted, will mark the most significant development to will writing since the enactment of the Wills Act in 1837.
It is now in the hands of the government to decide how to react to these recommendations but there is a good chance that some, if not all of them, will be taken forward. If so, this would drastically modernise the will writing process and bring the law much closer to the modern day.
The key changes proposed by the Law Commission are as follows:
- Lowering the age requirement. Currently, the minimum age at which someone can make a will is eighteen. This would be reduced to sixteen. The court would also be given the power to authorise wills for individuals under the age of sixteen if it deems the individual to be sufficiently competent.
- Electronic wills. The report introduces the idea of electronic wills for the first time. It requires that the will is signed and stored using a ‘reliable system’ and, rather than strictly requiring the physical presence of two witnesses at the signing, it allows for ‘presence by means of visual transmission’.
- Formalising the test for testamentary capacity. Every individual making a will must have sufficient capacity to do so. Generally, practitioners have followed the test established in case law by Banks v Goodfellow (1870). The recommendations adopt the Mental Capacity Act 2005 as the legal test providing greater clarity.
- Revocation of wills. It is currently the case that entering into a marriage or civil partnership revokes a will. It is proposed that a will should now only be revoked by making a new will, intentionally destroying a will or by entering into a document revoking the will. This would abolish the rule that marriage or civil partnership revokes a will.
- Placing undue influence and knowledge and approval on a statutory footing. Case law has already determined that a court can find a will invalid if the person making the will was doing so under pressure or without understanding the nature and effect of their actions. It is recommended that this is placed on a statutory basis which would make it easier to identify and challenge these issues.
- Greater power for the court to interpret a will as valid. A will normally has to meet a number of formalities in order to be valid. It is proposed that the court could deem a will valid even though it doesn’t meet all of the formality requirements, so long as there is clear intention. The court is also given greater powers to correct mistakes and interpret ambiguous clauses.
- New rules where property is disposed of around the time of death. There can be issues where someone gives away or sells property around the time of their death but then also gifts that property in their will. New rules give clarity in this area and help avoid uncertainty. For instance, if a person entered into a contract to sell a property then died, leaving the property in their will, the beneficiary would instead receive the benefit of the contract. The gift would not be void.
The report contains other changes and clarifications, although it must be stressed that at this point these are recommendations rather than changes to the law. It remains to be seen whether, how, and when these changes will be implemented. It is, however, a huge milestone in this area of law and one which we will be closely monitoring in the coming months and years.
Expert Legal Advice and Guidance for Wills and Estate Planning
If you would like advice on wills, contact our Castleford branch today. Our expert team have a wealth of experience in this area and would be happy to guide you. Call 01977 557 171 or email castleford@isonharrison.co.uk to book an appointment today.
