Law Commission on making a will – Law Society response

We've responded to a wide-ranging consultation from the Law Commission on reforming laws around making a will.

The consultation explores a number of issues, including:

  • aligning the test for testamentary capacity with that in the Mental Capacity Act 2005
  • empowering courts to give legal effect to wills where formality rules have not been strictly followed
  • the role of electronic wills

In our response, we welcome efforts to bring the law on making a will into the 21st century.

We agree that courts should have the power to recognise and give legal effect to a deceased person’s final wishes, where they have not strictly followed the formalities required to make a valid will – with appropriate safeguards against fraud.

Our response also recognises that adopting the test in the Mental Capacity Act will ensure the same test is applied whether:

  • a testator is executing a will, or
  • the court is making a statutory will on their behalf