Modernising wills: 10 proposed changes to the law

In May, the Law Commission published recommendations to reform the law on wills, aiming to modernise the process and promote testamentary freedom.

Our current statute that governs will drafting dates back to the 1800s, so reform is overdue. People are living longer, capacity is a growing area for litigation and we live in a better technological age where reforms can be made.

This article looks at the top 10 recommendations put forward by the Law Commission and how they may affect you.

1. Dispensing power

Under current laws, we must adhere to specific formalities for a will to be valid. The Law Commission is recommending that the court is able to produce an order allowing certain documents that don’t fully meet the formalities to be treated as valid wills. This would apply if it can be proven that the document reflects the testator’s intended wishes.

Claimants could use electronic documents, videos, voice messages and other forms of evidence to prove that a document should be used as a valid will. The power could be useful where someone doesn’t fully meet the requirements but clearly intended their estate to be distributed in a specific way. However, this could lead to more contentious matters, busier courts and delays – and potentially more people taking advantage of the system, with the deceased wishes not being met.

2. Undue influence

Contesting a will on the grounds of undue influence is currently very difficult. It requires the claimant to prove that the testator was coerced – that their free will was overpowered by the influencer – into making the will.

The court would have to assess the testator’s physical and mental state, the nature of the relationship with the alleged influencer, the terms of the will and any previous wills. Much of this evidence is difficult to find, as undue influence often happens behind closed doors. The recommendation is that courts should be able to infer that a will was brought about by undue influence where there are reasonable grounds to suspect it, rather than relying solely on direct evidence.

3. Marriage not revoking will

This recommendation aims to reduce the risk of predatory marriage. Current law means that marriage revokes any existing wills someone has in place, unless the marriage is explicitly referred to in the will.

While the threshold for having the mental capacity to create a will is high, the threshold for marriage is low. If someone lacks the capacity to create a new will after marriage, but does have the capacity to marry, a large proportion (if not all) of their estate will pass to the new spouse.

Removing automatic revocation could deter predators marrying for potential inheritance. However, marriage is a major life event – people should be encouraged to reassess their will and estate. Otherwise, this could lead to issues such as assets being bequeathed to ex-spouses. More on predatory marriages can be found in our Nexus issue.

4. Testamentary capacity

Currently, testamentary capacity is governed by the case of Banks v Goodfellow, which states that anyone making a will must:

• Be able to understand they are making a will
• Know what is part of their estate and what they are giving away
• Understand any claims that could be made by people who expect to benefit from the estate.

However, for other matters – such as the Court of Protection creating a will on someone’s behalf – capacity is assessed using a more modern test under the Mental Capacity Act 2005. This looks at whether someone can understand, retain and effectively communicate information.

The Law Commission recommends using this single modern test. This raises practical questions: would everyone need to be assessed, or only if capacity is questioned? Would a professional need to carry out the assessment in every case? That seems impractical – currently, only a small number of people require the Court of Protection to make an assessment on someone’s behalf.

5. Wills for 16-year-olds

Currently, you must be 18 to make a will. The Law Commission recommends lowering this to 16 because, under the Metal Capacity Act, children aged 16 or over are presumed to have the mental capacity to consent to their own medical treatment.

However, the Wills Act 1837 states that until someone reaches the age of 18, they cannot decide where their estate goes – even if they are terminally ill – unless they are in the military.

6. Knowledge and approval (new statutory definition)

One way to challenge a will is to claim the testator lacked knowledge and approval – that they didn’t know and approve the will and its contents. This test is applied in different ways by judges, making it inconsistent. Some require evidence of knowledge and approval when suspicious circumstances arise; others decide after hearing all the evidence put to them.

The Law Commission proposes a more structured approach:

• Pressure that causes the testator to make a will or part of a will they wouldn’t otherwise have made
• Pressure applied deliberately to influence the testator to make a will or part of a will they wouldn’t otherwise have made.

7. Statutory wills (wishes and feelings)

There are many changes surrounding statutory wills including lowering the age to 16 (as above) and allowing courts to consider property outside England and Wales, which they are currently limited to. The main change is to place greater emphasis on the individual’s wishes and feelings when deciding what should be included in a statutory will.

8. Ademption rules

Ademption rules apply when an asset no longer exists or the gift is uncertain and cannot pass to the intended person. The Law Commission aims to give courts more power to decide where gifts should go, if there is clear evidence of the deceased’s intention.

9. Rectification

Courts can currently rectify a will if there’s a clerical error or the drafter misunderstood the testator’s instructions. The new bill would allow courts to consider external evidence beyond the will itself – such as the testator’s intentions – to clarify ambiguous language and reduce disputes.

10. Electronic wills

The Law Commission supports introducing electronic wills, providing that further formalities are enforced to protect testators from making a will unintentionally.

Our Private Client team can support with drafting your will.