The current Wills Act is a product of Victorian England. For perspective, it was enacted two years before the Metropolitan Police Act 1839, which made shaking a carpet, rug or mat (but not a doormat) in the streets of the Metropolitan police district an offence. Almost two centuries later the Wills Act 1837 remains the rulebook on the creation and validity of Wills for legal professionals. However, after calls to update and modernise the legislation, a proposal for doing so is finally in motion.
The Wills Act 1837
With the aim of reducing uncertainty and fraudulent activity, the Wills Act 1837 standardised the creation of a valid Will. It introduced strict formalities which must be complied with when drafting and executing a Will, for example the requirement that two witnesses be present for the testator’s signature. It also addressed the issues surrounding marriage, divorce and the revocation of Wills.
Whilst this rigid piece of legislation has been praised for providing consistent certainty, it has also been criticised for being too inflexible. If a Will fails to meet one of the strict formalities, there is little scope for that Will to be deemed valid. The unyielding nature of the Act may be considered an obstacle for people when deciding to make or update their Wills. Wills too often appear to only be a consideration later in life, put off until absolutely necessary or until after it’s too late. A modernised system should make the process easier to access and provide some leeway when the circumstances call for it.
The Law Commission’s Report
On 16th May 2025, the Law Commission published the Report Modernisng Wills Law. Volume I of the report contains recommendations for reforming the current legislation, whilst Volume II consists of a draft Bill for an entirely new Wills Act. The report proposes changes to increase clarity and protect testators from undue influence and fraud, while supporting testamentary freedom.
The Law Commission’s Draft Bill
In pursuit of the Law Commission’s recommendations, the draft Bill is for a modern Wills Act to wholly replace the Wills Act 1837. It includes the following reforms.
Will Formalities and Testamentary Freedom
Although the current formalities for creating a Will would remain unchanged, the judiciary would be provided with an additional ‘dispensing power’. This would allow judges to decide whether a Will should be valid, even when not every formality has been complied with. So long as the deceased’s testamentary intention was clear, validity could be decided through judicial discretion.
This is already the case in other jurisdictions, such as Australia and Canda, where judges can bypass the strict formal criteria to validate documents which reflect true testamentary intention. The reasoning here is clear. Efforts to dispose of your estate as you wish should not be completely wasted simply because of a failure to meet one technical requirement.
It is obvious that this would have to apply on a case-by-case basis. In exercising this ‘dispensing power’, the judiciary would need to construct a framework for determining testamentary intention. It is likely that a new legal test would soon be developed by judges to help decide where to set the bar.
Testamentary Capacity
The Bill also intends to widen access to testamentary freedom by reducing the minimum age for making a Will. Currently you must be 18 years old to create a valid Will; the Law Commission proposes to lower this to age 16. Under the Mental Capacity Act (MCA) 2005, people are presumed to have capacity to make decisions, for example about their health, if they are over the age of 16. Lowering the age for testamentary capacity would reflect a more consistent approach to age parameters for mental capacity.
Along the same lines, but with weightier impact, the Bill scraps the long-standing test for testamentary capacity, originating from the 1870 case of Banks v Goodfellow. Instead, the Law Commission proposes using the test from the MCA 2005.
The MCA 2005 test is already used by the Court of Protection when assessing whether they should step in and make a Will for someone who lacks the capacity to make one themselves. Therefore, the legal profession is currently applying two different tests, the co-existence of which the Law Commission say is a ‘confusing anomaly’. They therefore recommend only the MCA 2005 test apply when determining testamentary capacity.
However, this divergence from the established test may not be a welcome one. The MCA 2005 starts with the presumption that someone has capacity unless there is reason to think otherwise. Conflictingly, current practice is that testamentary capacity should be established before considering drafting a Will. A testator needs to understand what a Will is, what assets they have and who could potentially make a claim against their estate. Changing the test to presume capacity from the start may be met with hesitance from legal professionals. Consequently, we could see an increasing need to obtain medical capacity assessments for testators before Wills are drafted.
Undue Influence
Undue influence can be a challenge to prove. Commonly, coercive or fraudulent behaviour occurs behind closed doors, leaving scarce solid evidence of its existence. Currently the burden of proof is on the party asserting that the testator was unduly influenced to demonstrate it occurred, on the balance of probabilities.
However, the Law Commission intends to reverse this. Where undue influence is alleged, the accused individual who benefits from the new Will would be required to prove they did not inflict undue influence on the testator. If they are unable to, and there are reasonable grounds to suspect it, judges would have the power to infer that undue influence did occur.
Vulnerable testators, especially the elderly, can be particularly susceptible to exploitation. The aim here is to address growing concerns about financial abuse, by increasing protection for testators. With the same intention, the Bill also plans to abolish the rule that marriage, or entering a civil partnership, revokes a Will. No Will means an estate is distributed according to the intestacy rules and the intestacy rules often provide a spouse with the bulk share of the estate. This may not be in line with the testator’s wishes, as expressed in the revoked Will. Stopping Wills from being automatically revoked would eliminate this as a method of financial exploitation.
Digital Wills
Finally, and perhaps unsurprisingly, the Law Commission has proposed to bring in the digital Will. They would still need to adhere to the same formalities as a paper Will, but electronic Wills would be capable of being valid.
This update is arguably a much-needed reflection of the society we now live in and of the technological advancements which have occurred since the 19th Century. It may make a Will feel more standardised and accessible, and so could encourage a greater number of people to make them.
There would however need to be an approved and secure system of storage. We are regularly seeing issues around data protection, with even the largest of organisations being susceptible to hacking and theft. Whilst the technology is there to utilise, it remains to be seen how the security of digital Wills can be assured.
Conclusion
The government’s initial response to the Law Commission was to welcome the report. Sarah Sackman KC MP, Minister for Courts and Legal Services, stated that ‘the government recognises that the current law is outdated and we must embrace change’. In doing so however, she did emphasise that any reform must ‘not compromise existing freedoms’.
To date, the report and draft Bill remains with the government for consideration. Any eventual enactment of the Bill would require further reflection and guidance from the courts, meaning it could be some time before we return to the same level of certainty and clarity in this area as we have now. However, considering the age of the current Wills Act, it does indeed seem high time that the legislation accurately reflect the world we live in today.
