Reform of the law on making a will

Imaginative judicial interpretation has often been required to apply its provisions to modern circumstances.

The rise in disputed wills demonstrates that there is a need to reform this area of law.

In 2017, the Law Commission sought views to inform proposals for reforming the Wills Act 1837. 

After putting the wills project on hold, the Law Commission has re-started its work and held a supplementary consultation focusing on electronic wills and the .

The proposals

In its first consultation, the Law Commission consulted on proposals to:

• enable the court to dispense with the formalities for a will where it’s clear what the deceased wanted
• change the test for capacity to make a will to take into account the modern understanding of conditions like dementia
• provide statutory guidance for doctors and other professionals conducting an assessment of whether a person has the required mental capacity to make a will
• make new rules protecting those making a will from being unduly influenced by another person
• lower the age that a will can be made from 18 to 16

n its supplementary consultation, the commission gathered evidence on:

• whether electronic wills could, or should, be able to comply with the formal requirements for a valid will
• whether, and how, it should be possible for wills to be executed or made using electronic means
• whether wills should be able to be stored and admitted to probate solely as electronic documents
• the prevalence of predatory marriage
• the need for protection of vulnerable testators from financial abuse

Our view

We support the majority of the Law Commission’s proposals to bring the law into the 21st century.

Our key comments are:

Capacity

We support the proposal to adopt the definition in the Mental Capacity Act 2005 (MCA) for testamentary capacity.

Adopting this legal test will address the current issues identified by the Law Commission, where different tests are applied depending on whether:

• a testator is executing a will, or
• if one is being made once a testator loses capacity to make a will themselves

We strongly agree that a code of practice would be helpful in providing guidance to the court, and professionals (legal and otherwise), as to how capacity should be assessed.

A clear code of practice, written in plain English, will also inform lay persons who may be supporting loved ones to make a will, or who may question how their capacity may be assessed.

Statutory wills

We agree that it's sensible to keep the making of a statutory will within the jurisdiction of the Court of Protection.

However, we highlight that a comprehensive review of the law of wills should include a full review of the framework and operation of statutory wills.

We agree that the fact that a person had not made a will before losing capacity should not preclude the making of a statutory will on their behalf.

Many people make a will in later life and it cannot be assumed that a person makes an active choice not to make a will.

Formalities

We’re concerned that 40% of people die without making a will each year.

We therefore agree with proposals for courts to be given a dispensing power to recognise and give legal effect to a testator’s intentions, where strict formalities for making a valid will have not been followed.

However, we recognise that wills are discretionary, and legal reform can only go so far.

There are several reasons why individuals may actively choose, or remain indifferent to making a will, including age and cultural perceptions of death.

Electronic wills

Electronic wills need to have an appropriate level of protection to address concerns about the risk of fraud and undue influence.

It is important to make sure that people who would struggle to make a will electronically are not disadvantaged.

Revocation by marriage or civil partnership

There is a need for further action to prevent the exploitation of vulnerable people through the marriage and wills process.

It is difficult for us to take a clear view on whether section 18 of the Wills Act 1837 should be revoked.

Our survey found divided opinion on the issue of marriage revoking a will.

Overall, 42% of solicitors agreed the law should be changed to stop marriage from automatically revoking a will.

Next steps

The will reform project was paused in 2019 to focus on a review of the law concerning weddings.

Following publication of that report, the Law Commission has restarted the wills project. 

It will now re-engage with stakeholders before delivering its final report. 

We will update this page as the project develops.

Read the consultation on the Law Commission website 

What we’re doing

• December 2023 – we responded to the Law Commission's supplementary consultation on wills reform
• November 2017 – we responded to the Law Commission’s consultation on making a will (PDF)

Our expert Wills and Equity Committee continues regular engagement with the Law Commission.