The Law Commission is an independent body which reviews laws within England and Wales and, where appropriate, recommends changes and reform. These recommendations are then passed on for the consideration of Parliament where it is debated and agreed whether or not the recommendations are adopted and become law.
The most recent Law Commission report, dated 16 May 2025, looks at ways the law can be updated to modernise Wills and promote testamentary freedom. The Law Commission has suggested new legislation be implemented which revokes the Wills Act of old and introduces a brand-new Wills Act 2025. Among other changes, the inception of electronic Wills could come into play later this year.
The Report itself is some 494 pages long, so this article shall review some of the key changes of what is being proposed by the Law Commission and how they are different to the laws we have currently in place.
Age to make a Will
Under the Wills Act 1837 a testator (being the person making a Will) must be at least 18 years old. The proposal is to reduce this age to 16. This seems to bring the law more in line with the likes of family and medical law whereby 16-year-olds with capacity are deemed to be able to make decisions regarding the likes of medical treatment without a parent also consenting (Gillick v West Norfolk AHA [1985]).
The Law Commission also wish for a statutory power to enable a minor under 16 to be able to make a Will with the consent of the Court in exceptional circumstances where they are deemed competent.
Electronic Wills
One of the more controversial proposals is permitting electronic Wills to be valid. Such Wills are unlikely to satisfy the formalities under the current Wills Act 1837.
In a modern age, there is a constant drive to digitalise. In recent years in the private client world, we have seen the digitisation of the Probate Service and, soon, the introduction of making Lasting Powers of Attorney digitally.
During lockdown there was a temporary relaxation on the need for witnesses to be physically present in a room at the same time as the testator signed the Will. Witnessing instead took place via video platforms. However, as soon as lockdown ended, so did the temporary provision.
One of the purposes of having strict formalities when signing a Will is to prevent fraud. With the likes of Artificial Intelligence taking an increasingly large role in modern life, so too is the scope for fraud.
There are concerns that the risks of misuse of an electronic Will system would far outweigh the “convenience” of making them remotely.
Marriage and Civil Partnerships
Currently, where someone has a Will, then marries/enters into a civil partnership, unless that Will has been made in contemplation of that marriage/civil partnership then the Will is automatically revoked. If that individual does not make a new Will, their estate would pass instead under the statutory Intestacy Rules as they would have died having not left a valid Will. The new spouse/civil partner would receive part of the estate under the Intestacy Rules, but the amount which passes to them will depend on if the person who has died has children/grandchildren who survive them.
The level of capacity to make a Will is much higher than the capacity needed to enter into a marriage or a civil partnership. Therefore, it may not be possible for a person to make another Will after their marriage/civil partnership as they may not have sufficient capacity to do.
The Law Commission wish for this to be changed so there is no automatic revocation in these circumstances. The reasoning behind this is a safeguarding measure to try and minimise financial abuse of vulnerable people where someone unscrupulous may try and receive part of the vulnerable person’s estate by marrying, or entering into a civil partnership with, them.
Changing the test of capacity to make a Will
Currently, to be deemed to have the necessary capacity to make a Will, the test in Banks v Goodfellow [1870] needs to be satisfied. In short, to have capacity to make a Will an individual must:
- Know they are making a Will
- Know what is in their estate;
- Know to whom they should have moral regard to
- Not be suffering from any condition or disorder which would affect their ability to make decisions.
The Law Commission are proposing to abolish this rule so that the test for capacity as adopted in the Mental Capacity Act 2005 be utilised instead. This comes with an automatic presumption of capacity unless it can be demonstrated that the individual is unable to make a decision for themselves, and the reason they are unable to make such a decision is because of a condition or disorder which causes an impairment in the mind or brain.
In circumstances where an individual has already lost capacity it is possible for an application to be made to the Court of Protection to make a Will on behalf of that individual, known as a Statutory Will. When establishing whether or not a Statutory Will can be made, the test for capacity is the one under the Mental Capacity Act 2005. Whereas, if that same person had made a Will before they lost capacity, they would be assessed on the basis of the Banks v Goodfellow test.
The proposal is to allow the same test to be used in all circumstances relating to Wills. However, the use of each of the tests could result in a different outcome each time, so further guidance from the Law Commission will be needed in order for this to be properly debated in Parliament.
Extending Powers of the Court
Currently, for a Will to be valid it needs to be in writing, signed by the testator and witnessed by two independent witnesses who sign in each other’s presence and in the presence of the testator. If these conditions are not met, then the Will is invalid.
The Law Commission wish to extend the powers of judges to rule upon a document being valid as a Will even if the formal procedure has not been followed. This puts an individual’s intentions at the centre of the matter, even where the strict rules relating to validity have not been followed.
In a modern era, this does bring into question whether, in future, we will be seeing cases relating to the validity of a Will via an email or even a WhatsApp message, where it can be shown that this was the intention of the person who has died.
Conclusion
What should be stressed is that, at present, these are only recommendations and they have not yet become law. The Law Commission has had a number of successful adoptions of their recommendations in the past, but not all of them have. Only time will tell as to what extent (if any) this, or any future government, will take on board the recommendations and implement them into law. As things currently stand, electronic Wills have not replaced the physical copies we use today.
DMH Stallard can assist on all aspects of future planning. If you would like to discuss making a Will or would like further information regarding the validity of an existing Will, please get in touch with one of our expert private client solicitors today by email or call +44 (0)3333 231 580.
