The ‘Wills Act 1837,’ the legislation which sets out the requirements for a valid will, is nearly two centuries old! Therefore, reforms and the implementation of new laws – to reflect modern day life, have been long overdue.

The Law Commission has unveiled a landmark report and a new draft bill proposing sweeping reforms to the laws governing wills in England and Wales. Let’s look at the recommendations and how they would impact on you when making a Will:

A Relaxing of Current Restrictions

Under the Wills Act 1837, the Will must be signed by the testator in the presence of two witnesses who must attest to the signature and the testator must intend to give effect to the will by signing in front of the witnesses.

One of the new recommendations is that courts can make an order to validate wills that don’t strictly comply with such formalities, provided there is clear evidence of the testator’s intentions.

Courts would consider proof, such as voice recordings, videos or text messages whilst being satisfied that the testator’s wishes were unchanged at death.

This proposed reform could assist with homemade Wills where official protocol, such as the two witnesses, can often be overlooked. It could also ensure that estates are distributed according to the testator’s true wishes; something that can get overlooked due to technical mistakes.

Lowering the Age of Will Makers

Currently, you must be 18 or over to make a valid will and this means that if a child under the age of 18 dies, their estate will be subject to the rules of intestacy. In most cases, this means that their estate will pass to their parents – something that isn’t always ideal – particularly if a child has become estranged from one parent.

The Law Commission has recommended that the age requirement for a valid will be lowered to 16.

Rectification of a Will

A court can currently only ‘rectify’ a will where the drafter mistakenly used the wrong language to describe the testator’s intentions (either by way of a clerical error (an incorrect name or date) OR a failure to understand the testator’s instructions).

The Law Commission has recommended that the Courts have a general power to rectify a will in situations where it is satisfied that the will does not give effect to the testator’s intentions because the drafter failed to understand the meaning or effect of the words used.

Changing the Standard of Proof
in Undue Influence Cases

A will can be invalid if the testator was coerced into making it. However, the burden is on the person trying to prove that undue influence occurred and it can be very difficult to show evidence of coercion.

Under The Law Commissions new recommendations, the Court can step in and shift the evidential burden to the person defending the claim – with them having to prove that the testator was not unduly influenced.

Validity of Gifts to Witnesses

Currently if there is a legacy in a will left to someone who witnesses the will; or to the witness’s spouse or civil partner, that legacy will be invalid. This is aimed at preventing coercion or the possibility of witnesses taking unfair advantage of a testator.

The Law Commission has recommended that this be extended to legacies that are left to:

A – A witness’s cohabitant.

B – A person who signs the will on behalf of the testator and…

C – The spouse, civil partner or cohabitant of a person who signs the will on behalf of the testator.

Conversely, the Law Commission has also recommended that in certain cases, the court should have the power to ‘save’ a legacy in situations where it would otherwise be invalid by virtue of the above – if it is reasonable and just to do so.

Marriage Revoking Wills

Wills are currently automatically revoked by the marriage of a testator (save in cases where a will is carefully drafted ‘in contemplation of marriage’). A lot of testators are unaware of this consequence of marriage and the result is that, after they have married, their estate will pass under the rules of intestacy and the spouse is likely to receive the lion’s share.

This automatic consequence is particularly an issue where there is a ‘predatory marriage’. Even if someone lacks capacity to marry, in the eyes of the law the marriage has taken place and therefore any existing wills a testator had will be revoked.

If the marriage is voidable, because the testator had lost capacity when they married, they are unlikely to have capacity to execute a new will. In such circumstances, an application would need to be made to the Court of Protection for a statutory will.

Under The Law Commission’s new recommendations, the law that revokes a will, upon marriage, would be abolished and spouses who would potentially ‘lose out’ should be sufficiently protected by the Inheritance (Provision for Family and Dependants) Act 1975.

Overhaul of the Testamentary Capacity Test

The current test to determine whether someone has ‘testamentary capacity’ (that is, the capacity required to execute a valid will) is that they:

• Understand the nature and effect of making a will.
• Know the extent of their property.
• Appreciate the claims of those who might expect to benefit.
• Not suffer from any disorder of the mind that distorts their judgment.

Another test, laid down by the Mental Capacity Act 2005 (“MCA”), states that:

• A person is presumed to have capacity unless it can be shown that they do not.
• The person must be unable to make decisions for themselves (and the MCA breaks down how this is to be judged); and….
• That inability must be caused by an impairment to the mind or brain, or a disturbance to their functioning.

The Law Commission has recommended that the MCA test should apply for all assessments of testamentary capacity.

Electronic Wills

The Law Commission has recommended that provision should be made for electronic wills; and that witnesses may be present remotely.

During the Covid pandemic, electronic wills grew in popularity since covid restrictions prevented witnesses from being in their presence whilst a will was signed.

The Law Commission has recommended that, to protect people from undue influence which may be easier to assert when documents are signed electronically, or fraud, that a reliable system must be used which ensures that the testator’s electronic signature is linked to them at the time it is signed.

When Will the Wills Bill 2025 Come into Force?

The bill is still in draft form and the government is expected to provide a full response to the proposals by May 2026. This means that any changes to current law are likely to take place sometime after May 2026.