Wills

The Law Commission has published its recommendations to reform the law of wills in its Report: Modernising Wills Law.

The reforms will modernise the law governing wills to ensure it is fit for purpose in the modern age. Our recommendations are aimed at supporting testamentary freedom, protecting testators, and increasing clarity and certainty in the law. The final Report is accompanied by a draft Bill for a modern Wills Act, to replace the Wills Act 1837.

Problem (Back to top)

Wills are one of the most important documents a person might sign during their lives. How property passed on death depends on whether the person died with a valid will in place, because a will is the primary way that a person can determine what happens to their property when they die. The ability to make a will, and in whatever terms the person wishes, is a fundamental legal principle of the law of England and Wales.

However, the law surrounding this important topic is not as clear as it could be, which may put people off making wills altogether. In some cases, the law is preventing people’s clear wishes about what should happen to their property when they die from being given effect.

The law is also outdated – it is largely a product of the Victorian era.

Wills law is governed by both legislation – primarily the Wills Act 1837 – and case law, some of which has been developing for hundreds of years. Reform is required to take account of the changes in demographics, society, technology and medical understanding that have taken place since then.

Most people today will live longer than their ancestors did, and, as a consequence, more people will suffer from ill health and a decline in their mental acuity that are commonly associated with old age. The property that the average person owns, particularly their home, may be more valuable than it was in the past. In the past, documents would have been in paper form; but documents in electronic form are now far more prevalent than paper documents.

Project (Back to top)

The wills project came out of the 12^th Programme of Law Reform, and began in 2016. We published our Consultation Paper, Making a Will, in July 2017, which was followed by a consultation period, closing in November 2017.

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 that topic. We re-commenced the wills project after publishing our final report on weddings law in July 2022.

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

On 16 May 2025, we published our final Report, Modernising Wills Law. The Report contains two volumes: Volume I contains our recommendations for reform, and Volume II contains our draft Bill for a new Wills Act that would give effect to our recommendations for legislative reform, accompanied by explanatory notes.

The Report was informed by the detailed responses from consultees that we received to our 2017 Consultation Paper and 2023 Supplementary Consultation Paper.

Our recommendations for reform

Our recommendations for reform, as set out in our final Report, Modernising Wills Law, are aimed primarily at supporting testamentary freedom, protecting testators (including from undue influence and fraud), and increasing clarity and certainty in the law where possible.

Testamentary freedom

Testamentary freedom –an individual’s ability to determine how their estate will be distributed after their death – is a guiding principle throughout the Report. We make several key recommendations which are particularly focused on this aim.

Giving the court the power to dispense with the formality requirements to make a valid will, to be used on a case-by-case basis. This power will allow the court to deem a document or record to be a valid will where the court is satisfied that the document reflects the person’s settled testamentary intentions. This will address the strictness of the current law, under which non-compliance with the formality rules makes a will invalid no matter how clear the person’s intentions were . Creating an power to be used in exceptional circumstances, while maintaining the current formality requirements, ensures that the important protective functions the formalities serve are not lost.

Reducing the minimum age at which a person can make a will from 18 to 16. Currently, a person must be 18 years old to make a valid will. A child who is terminally ill and who does not wish one of their parents to inherit from them or decide what happens to their body when they die, for example because the parent has not played a role in their life, has no ability to set out their binding wishes. Other countries allow children under 18 to make wills, and the law presumes that children from age 16 have capacity to make other types of decisions.

Protecting testators

We also make recommendations to protect testators, bearing in mind the serious problem of financial abuse, particularly of the elderly.

Abolishing the existing rule that a person’s will is automatically revoked when they marry or enter a civil partnership. This rule can be exploited by those who enter a predatory marriage with a vulnerable person – marrying them in order to inherit from them. Predatory marriage is a form of financial abuse which has devastating consequences for the victims and their families.

Increasing protections for those who are coerced into making a will. It is currently too difficult to challenge the validity of a will based on undue influence (meaning that someone made a will that they did not want to because of another person’s influence). Evidence of undue influence can be hidden because it often happens behind closed doors and by someone close to the person making a will, and the law places a high evidential burden on anyone alleging undue influence. As a result, the law is not adequately protecting vulnerable people from financial abuse. For that reason, we recommend that it should be possible for the courts to infer that a will was brought about by undue influence where there is evidence which provides the court with reasonable grounds to suspect it.

Clarity and certainty

We have sought to clarify the law where possible. A significant part of our work has been to create a draft Bill for a new Wills Act, which is intended to replace the existing legislation – the Wills Act 1837. As well as enacting our recommendations, the draft Bill comprises a modern, comprehensive and accessible piece of legislation to govern wills law.

We also make recommendations to clarify the law and make it more certain.

Making specific provision to enable electronic wills to be formally valid – an important update to the law of wills to make it fit for the 21^st Century. However, we also recommend that electronic wills should have to meet specific requirements to ensure that they are safe and reliable.

Clarifying the law on testamentary capacity. There are currently two tests which apply to the question of testamentary capacity, depending on the issue being decided. The common law test applies if the question is whether the person has capacity to make their own will, and the test in the Mental Capacity Act 2005 applies if the question is whether the court has the power to make a will on the person’s behalf. This confusing anomaly is the product of the law’s historical development. We recommend that only one test should apply: the modern test in the Mental Capacity Act 2005.

Next steps

We published our final Report on 16 May 2025 and the Government gave their initial response here. It is now for Government to review and consider our recommendation for reform, and our accompanying draft Bill for a new Wills Act.