Modernising Wills Law report – key reforms explained

Law Commission recommends overhaul of Wills Act

On 16th May 2025, the Law Commission published its long-awaited recommendations in the ‘Modernising Wills Law’ report and with it comes some significant proposals.

The Law Commission recognises that Wills are one of the most important documents a person will sign during their lifetime and as the current legislation is nearly 200 years old, the reform is necessary and aims to ‘modernise the law governing Wills to ensure it is fit for purpose in the modern age’.

What are the proposed changes to the Wills Act?

The review by the Law Commission focusses on many areas which need reform, with the recommendations aimed at:

1. Supporting testamentary freedom;
2. Protecting testators; and
3. Increasing clarity and certainty in the law

In this article, our private wealth lawyers discuss some of the key recommendations which will undoubtedly have the biggest impact. They also share the results of a poll taken from a recent webinar which was attended by over 1,300 legal professionals.

Our Wills, trusts and estate administration lawyers will cover:

1. Lowering the age of being able to make a Will
2. Standardising the mental capacity test
3. Dispensing with formalities of making a Will
4. Electronic Wills
5. Undue influence
6. Changing the effect of marriage or civil partnership in revoking a Will

1. Lowering the age at which an individual can make a Will from 18 to 16

Under current law, a child under the age of 18 cannot prepare a Will. This means that a child currently has no say in how their assets will be distributed and could, in certain situations, lead to an unjust outcome. In most cases, a child’s estate will pass equally to their parents, which may not be what the child would wish for if, for example, they are estranged from one parent.

Whilst this change may not be particularly important for many, there will be a handful of people who will greatly welcome this change. There are many musicians, individuals in sports, influencers and social media stars who are earning in some cases, millions and are currently bound by the law and have no say in who should inherit their wealth in the event of their death.

The Law Commission recognises there may be children aged 16 and above with life limiting conditions who should have the freedom to make a Will and allow them to give their assets to someone of their choosing, rather than be bound by the intestacy rules.

Finally, the Law Commission recommends that the family Courts should have the power to authorise a child even younger than 16 to make a Will, provided that they have capacity to do so. Whilst again this is likely to affect only a small number of people, it is a change that should be welcomed.

Pole result: When asked whether the age limit should be lowered to 16:

• 48% of people voted ‘yes’
• 16% voted ‘no’
• 6% voted ‘yes from the age of 12 (as in Scotland)’
• 30% voted that there should not be an age limit and that there should just be a capacity test

The Law Commission’s proposal to lower the minimum age of making a Will to 16 is likely to introduce new complexities in the field of contentious probate. At Morr & Co, we have a specialist team that handles disputes involving inheritance, Wills, trusts and the estates of deceased individuals, please get in touch if you have any concerns or queries.

As younger individuals begin to create Wills, disputes will likely arise concerning their capacity, understanding and susceptibility to undue influence, particularly given their limited life experience and potential vulnerability. Legal professionals may need to exercise heightened caution when assisting 16 and 17-year-olds, by adopting more rigorous procedures to assess and document testamentary capacity.

It is anticipated that Wills made by individuals in this age group will be subject to greater scrutiny, potentially resulting in a rise in disputed Will cases.

2. The Mental Capacity Act 2005 to replace the test in Banks v Goodfellow

As it stands, there are two tests for whether an individual has the necessary capacity to create a Will, with one test set out in the Mental Capacity Act 2005 and one deriving from the case of Banks v Goodfellow (1870).

The Banks v Goodfellow test states that a testator (the person making the will) has testamentary capacity where they:

• understand the nature of the will and its effect;
• understand the extent of the property of which they are disposing under the will;
• are aware of the persons for whom they would usually be expected to provide; and
• must not be affected by any disorder of mind or insane delusion.

In order for a person to have testamentary capacity under the Banks v Goodfellow test, all of the above criteria must be met. If any of the above is not met, then the testator is deemed to lack testamentary capacity.

When an individual is creating their own Will, it is the test in Banks v Goodfellow which applies. When the Court of Protection is approving a Will for an individual who lacks capacity, it is the test under the Mental Capacity Act which applies.

Whilst judges stand firm that the Banks v Goodfellow test should be followed, it has been argued that a single, modern mental capacity test should override the Banks v Goodfellow test which is now over 150 years old. Whilst the Law Commission accepts that the test in Banks v Goodfellow is a suitable test for professionals, they do not consider it an appropriate test for everyday people to understand.

The Law Commission proposes that there should be a single statutory test which reflects the test in Banks v Goodfellow and for it be in a format which is clear and accessible for the general public. The aim with this proposal is to ‘increase clarity and certainty in the law’.

Pole result: When asked whether the Mental Capacity Act test should replace the test in Banks v Goodfellow:

• 37% said ‘yes’
• 63% said ‘no’

The proposed reforms by the Law Commission will certainly bring about significant change for those specialising in contentious probate. If implemented, this proposal would alter the long-standing test for determining whether someone had the mental capacity to make a valid Will.

This change is likely to result in more legal challenges, at least initially. Both the Court and legal professionals will need to adapt to this new approach. It remains to be seen whether the Mental Capacity Act 2005 can address the flaws in the current system, or whether these proposed reforms will introduce a clearer, more modern framework that ultimately reduces legal battles.

3. Powers to dispense with formalities

Section 9 of the Wills Act 1837 sets out the necessary formalities which must be met for a Will to be held as valid. The law on formalities is very strict and leaves no room for error. Even the smallest of errors/mistakes will render the Will invalid.

This can result in an individual being deemed to have died intestate (without a valid Will) or mean that provisions of a former Will are followed. This is the case even where the individuals wishes are crystal clear.

The Law Commission has recommended that the Courts have power to deem a Will to be valid if it is satisfied that the individual’s intentions are clear, despite the fact that there may have been an error or mistake in one or more of the formalities.

Whilst the Law Commission is not recommending reform to the formality requirements themselves, it wants Wills to be accessible to everyone and for individuals to have the option of preparing a Will without the need for legal assistance and as such, provided that the error does not alter the individuals’ actual wishes, it can be held to be valid.

In determining whether an individual’s intentions are clear, the Court will be allowed to examine all evidence and records made by the individual which could include, for example, a video recording or an electronic document.

Poll result: When asked whether the Courts should have power to validate Wills not meeting legal formalities:

• 82% said ‘yes’
• 18% said ‘no’

Historically, Wills have often been challenged for failing to meet strict formalities, such as improper witnessing. But under proposed reforms, the battleground may shift from technical compliance to proving the testator’s true intentions – raising fresh uncertainty and a heavier evidential burden in probate disputes.

The central question may shift from ‘Have the formalities been met?’ to ‘Can the testator’s intentions be clearly established and upheld?’, a determination that will depend heavily on the facts of each case.

4. Electronic Wills

Wills operate in a different context than other legal documents because by their nature, they can be prepared privately by the individual themselves and destroyed at any time before death. The risk of fraud or forgery is most often committed by someone close to the individual and if it does happen, that fact does not come to light until the individual has died.

The Covid-19 pandemic in 2020 challenged the strict approach to formalities because during this time, the law was changed temporarily to allow for video witnessing to allow for the fact that signing could not be done in the same room.

The Law Commission’s recommendation is that as our society becomes more digital, that electronic Wills should be permitted. The report emphasises that the formality requirements will have to be slightly different to reflect the peculiar challenges of an electronic Will (identifying the individual and their witnesses, how to store the Will safely and how to identify the “authentic” Will from copies), but leaves the specifics for Government to suggest.

In the UK, the response and support to this change from consultees to the report remains mixed although interestingly support did increase since the pandemic period. There is a suggestion that younger generations will prefer to have electronic Wills and the report also raises the point that electronic Wills would lower the barrier to Will-writing and make this more accessible.

However, others remain concerned about how individuals Will be protected from abuse. The report does not go into specifics at this stage and so it will be interesting to watch this space to see if Government does take the recommendation further and if so, what the practicalities would look like.

Pole result: When asked whether electronic Wills should be legally recognised in England and Wales:

• 35% said ‘yes’
• 65% said ‘no’

Our Private Wealth and Inheritance Disputes team is particularly interested to see what protections will be put in place to guard against fraud. It is commendable that the Law Commission wants to encourage people to make Wills and provide greater accessibility.

However, in cases where fraud is alleged there will be a significant change in the evidence required in these cases. Our team anticipates greater reliance on expert evidence. Unfortunately, expert evidence comes at a significant cost.

5. Undue influence

One of the fundamental principles of the laws on Wills is the individual’s “testamentary freedom”; the idea that an individual can leave their assets to whomever they want. As such, one way to challenge a Will is to argue that an individual was coerced or was put in such a position (emotionally or physically) that they had no real choice but to change their Will.

This is what is meant by undue influence. We all get influenced by the world and people around us, but when this is abused, there is a legal process which allows individuals to seek redress from the courts.

The ability for the courts to determine whether there has been undue influence is a high bar and the report suggests that as a result, it can be difficult to prove and claims often fail for a lack of sufficient evidence.

The report therefore recommends that the courts should be able to infer that a Will was made as a result of undue influence in new legislation that would set out the approach the courts should take. The report’s discussion is technical as to whether there should be a strictly applied approach or whether the court should have discretion.

The ultimate aim is to provide a framework which would better protect the individual by looking at the circumstances and the gifts made in the Will in context of the individual and not just expecting the person bringing a claim to prove there was coercion.

Currently, the legal threshold for proving undue influence is extremely high, meaning it is rare for a Will to be declared invalid on this ground. Nevertheless, our Private Wealth and Inheritance Disputes team frequently encounter disputes where undue influence is alleged.

The proposed reforms aim to modernise and clarify this complex area of law, potentially introducing a more structured and balanced approach. This could make it easier to raise concerns about suspicious circumstances and may shift the burden onto those seeking to uphold the Will.

As a result, we are likely to see an increase in undue influence claims and closer scrutiny of Wills made in contexts involving dependency, isolation, or an imbalance of power.

6. Marriage/civil partnerships

A further recommendation by the report involves the impact of marriage on a Will. Under the current rules, if after making a Will someone gets married or enters into a civil partnership, their Will is automatically revoked.

The only exception to this is if, when making their Will, they make the Will in contemplation to a specific upcoming marriage or civil partnership and refer to this in the Will. If they do this, then the union would not revoke a Will.

Under the new recommendations, a marriage or civil partnership would simply not revoke a Will. The reasoning behind this recommendation is to protect vulnerable individuals from predatory marriages; a situation where someone may befriend a vulnerable individual, marry or enter into a civil partnership and as a result, revoke their current Will.

A vulnerable individual may include an elderly person but also anyone lacking the capacity to marry.

The reasoning of the Law Commission is that there is a general lack of awareness of this rule and the fact that the rule was introduced at a very different social time. They go on to say that new spouses or civil partners are protected because they could bring a claim against the estate if they are not provided for (under the Inheritance (Provision for Family and Dependants) Act 1975.

Poll result: When asked whether the law should be changed so that marriage no longer revokes an existing Will:

• 60% said ‘yes’
• 40% said ‘no’

While allowing a Will to survive marriage may reduce cases where predators benefit from intestacy, it does not fully address the issue. However, it is widely acknowledged that many older, vulnerable individuals have not created any Will at all, leaving them unprotected.

Even if a Will remains valid, a predator could still pursue a claim under the Inheritance (Provision for Family and Dependants) Act 1975, leading to costly litigation.

Equally, predators may then shift to focus to lifetime gifts and dissipation of assets during lifetime, exploiting vulnerabilities through marriage or the misuse of a Lasting Power of Attorney (LPA’s).

How can Morr & Co help?

The proposed changes to the law around Wills represent a significant shift in how people may plan for the future and how the Courts may approach disputes. While these reforms are still at the recommendation stage, they highlight the importance of clarity, planning and awareness when it comes to making or updating a Will.

At Morr & Co, our teams work closely with clients on all aspects of Wills, estate planning and inheritance disputes. We understand the sensitivities involved and the potential for challenges, particularly where younger individuals, complex family arrangements or questions around capacity are concerned.

Whether you’re thinking about creating a Will for the first time, supporting a loved one in doing so or are concerned about a potential dispute, we’re here to offer clear, practical guidance.

As the legal landscape continues to evolve, we’re keeping a close eye on these reforms and their potential implications so that we can continue to provide up-to-date and informed advice.

If you have any questions or concerns about how these proposals might affect you or someone you care about, please don’t hesitate to contact our Private Client team or Dispute Resolution team by emailing info@morrlaw.com or calling us on 0333 038 9100

Disclaimer
Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.