Wills

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

The Law Commission first consulted on reforming the law of wills in 2017. The project was then paused between 2019 and 2022. We published a Supplementary Consultation Paper, on 5 October 2023 on two topics: possible reforms to enable electronic wills and to the rule that a marriage or civil partnership revokes a will. The supplementary consultation period closed on 8 December 2023. We are now analysing responses to the supplementary consultation and developing our final recommendations for reform on all the topics within our review. We aim to publish the final Report and a draft Bill enacting our recommendations in early 2025.

Download the 2023 Supplementary Consultation Paper.

Download the Summary of the 2023 Supplementary Consultation Paper.

Download the Welsh Summary of the 2023 Supplementary Consultation Paper.

Download the Easy Read Summary of the 2023 Supplementary Consultation Paper.

Download the 2017 Consultation Paper. 

Download the Summary of the 2017 Consultation Paper.

Download the Welsh Summary of the 2017 Consultation Paper.

The problem 

A person’s will is an important document. People use wills to choose how to distribute their possessions and often to express preferences about what happens to their bodies after death.

When someone dies intestate – without leaving a will, or with a will that is not valid – it can cause difficulties for the family, adding to stress at a time of bereavement.

And yet it’s thought that 40% of the adult population don’t have a will. And even when someone has made a will the complexities in the law can sometimes mean strict formality rules aren’t followed and the validity of the will is called into question.

 

The project

The wills project came out of the 12th Programme of Law Reform.

The project began in 2016. In July 2017, we published the Consultation Paper, Making a Will. The public consultation period followed, and closed in November 2017. We then began analysing consultees’ responses and formulating our final policy, to prepare for drafting our final report and an accompanying Bill which will enact our recommendations.

In 2019 we paused the wills project to undertake a project on the law governing weddings, having agreed to Government’s request to prioritise work on weddings. We published our final report on weddings law, Celebrating Marriage, in July 2022. We re-commenced the wills project shortly afterwards.

In October 2023, we published the Supplementary Consultation Paper. The supplementary consultation period closed in December 2023.

The project is focused on the areas that stakeholders have told us are in need of reform. We are considering the following issues.

• The formal and substantial validity of a will, including:
  • testamentary capacity;
  • the formalities for a valid will (currently governed by section 9 of the Wills Act 1837), including an examination of the issue of a will being made electronically;
  • the interpretation and rectification of a will;
  • the possibility of a power to dispense with the formalities otherwise necessary for a will to be valid;
  • the age at which a will can validly be made; and
  • knowledge and approval and undue influence in the testamentary context.
• Statutory wills.
• Mutual wills.
• Ademption of testamentary gifts (where the property no longer exists or has changed in substance) and revocation of wills.
• The registration of wills.
• Donationes mortis causa.
• The comparative and international context of the law of wills.
• Other areas of the law of wills as set out in the Wills Act 1837.

The project is also exploring the need for possible future work on the management of digital information and assets, such as social media accounts, after a person’s death.

The law

The law governing wills is largely a product of the Victorian era. It is governed by both legislation – primarily the Wills Act 1837 – and case law, some of which has been developing for hundreds of years. In particular, the law that specifies when a person has the capacity to make a will was set out in a case from 1870.

Although the Wills Act has been amended and case law has developed in response to modern circumstances and understandings, we think the law of wills needs a comprehensive review to ensure that it remains fit for purpose today. That is what this project seeks to do.

The 2017 consultation

In 2017, the Law Commission consulted on proposals, amongst others, 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.

The Commission also sought to pave the way for the introduction of electronic wills, to better reflect the modern world.

We also asked the public:

• what the main barriers they see to people making a will are
• to tell us about their own experiences of disputes over wills following the death of a loved one
• whether the rule that marriage revokes a will should be retained or abolished.

 

The 2023 supplementary consultation

The Supplementary Consultation Paper re-consulted on two discrete issues: electronic wills and the rule that a marriage or civil partnership revokes an existing will.

Developments since the time of the Consultation Paper caused us to re-examine these issues. We wondered whether consultees’ views on these issues had also shifted.

At the time of the Consultation Paper in 2017, the case for allowing wills to be made and stored in electronic form was relatively novel. This might no longer hold true. Since then, there has been increasing recognition of the use of digital documents and signatures in other contexts, as well as huge developments in technology. The COVID-19 pandemic also took place, during which technology facilitated will-making.

In the 2017 Consultation Paper, we considered the need for protection of vulnerable testators in relation to the rule that a marriage or civil partnership revokes a will. However, concerns about “predatory marriages” have grown since then. These concerns might cast doubts on whether a marriage or civil partnership should continue to revoke a will.

The Supplementary Consultation Paper did not re-examine any of the other issues we considered in the 2017 Consultation Paper. We were unaware of other developments, in the past six years, which would alter consultees’ views on the other issues we are considering within this project.

Next steps 

We are now analysing the responses to the supplementary consultation, which will inform the development of our final recommendations for reform on these two topics.

The remaining stages of our work will be to develop our final policy on all topics within our review, and to prepare a final report and to instruct Parliamentary Counsel to draft a bill that would give effect to our recommendations. We aim to publish the final report and draft bill in early 2025.

Contact

For general enquiries, please contact us by email: wills@lawcommission.gov.uk.