Reforming wills law for the digital age

The current law on wills is primarily based on the Wills Act 1837 – making it nearly 200 years old!

There are a few drawbacks with the current law, especially as we now live in a digital age. The Covid-19 pandemic also highlighted this, with increased reliance on digital documents and challenges around witnessing wills in person.

The Law Commission is recommending reforms to the law of wills because the current legal framework is outdated, complex and no longer reflects modern society, technology or people’s needs.

Why reform is needed

The proposed reforms aim to address several key issues:

1. The law is inflexible and outdated

In almost 200 years, there have been so many societal, technological and medical changes – and the law hasn’t kept pace.

The realities of modern life, such as longer lifespans, digital technology and complex family structures, should be reflected in the law.

2. Individuals are put off making wills

The current legal requirements, including complexity and formality, deter people from making wills.

This increases the risk of individuals dying intestate (without a valid will), which can lead to uncertainty and family disputes.

3. The law can prevent people’s wishes from being honoured

Strict rules mean that even if a person’s intentions are clear, they may not be followed if the will fails to meet formal legal requirements. Minor errors or outdated technical rules can invalidate a will entirely.

There needs to be a balance between meeting the formal legal requirements to make a will and ensuring that an individual’s clear wishes are respected.

4. Old age or illness increases vulnerability

As people live longer, issues like diminished mental capacity become more relevant.

The current legal test for testamentary capacity should be based on modern understandings of mental capacity, rather than outdated case law.

5. More clarity and accessibility is needed

Centuries of case law and legislation make the current law difficult to navigate – even for us, as legal professionals.

A comprehensive and modern statute would improve clarity and accessibility.

6. Digital realities

As highlighted during the Covid-19 pandemic, the law doesn’t currently accommodate the use of electronic wills or remote witnessing.

What the Law Commission wants to achieve

The Law Commission aims to address several factors including modernisation, protection, clarity, flexibility and testamentary freedom.

Modernisation includes updating the law to reflect technological and societal developments.

The Law Commission would also like to protect and safeguard vulnerable individuals from undue influence or fraud.

It would be better if the law was easier to understand and apply – and flexible enough for courts to uphold clear intentions, even if legal formalities weren’t strictly followed. However, greater flexibility comes with risk, and there are questions around whether fewer barriers might undermine testamentary freedom.

Conclusion

As a solicitor, I appreciate how these recommendations could significantly improve how individuals plan for the distribution of their estate after death.

The proposed reforms aim to make the law of wills simpler, more flexible and better suited to modern life. However, I don’t believe the reforms come without risk; there would still need to be safeguards in place, which are currently accommodated for with the witnessing requirement for wills.