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

We launched our Supplementary Consultation Paper on 5 October 2023, and the consultation period will run until 8 December 2023. The Commission is now consulting on possible reforms to enable electronic wills and to the rule that a marriage or civil partnership revokes a will. We consulted on reforming the law of wills in 2017. The project was then paused between 2019 and 2022.

Respond using the online form here.

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 Consultation paper. 

Download the Summary of the 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 2023 supplementary consultation

The Supplementary Consultation Paper is a re-consultation 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 have caused us to re-examine these issues. We suspect that consultees’ views on these issues may also have 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 not hold true in 2023. The last six years have seen increasing recognition of the use of digital documents and signatures in other contexts, as well as huge developments in technology. The COVID-19 pandemic has also taken 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, in the past few years, concerns about “predatory marriages” have grown. These concerns might cast doubts on whether a marriage or civil partnership should continue to revoke a will.

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

Public consultation events 

We are hosting two online consultation events: one on electronic wills and one on revocation of wills by marriage/civil partnership.  

• Sign up for the 20 November 2023 event on electronic wills on Eventbrite here.
• Sign up for the 15 November 2023 event on revocation of wills on Eventbrite here.  

More information about each event, including joining instructions, will be sent to attendees in advance of the event. 

Responding to the supplementary consultation

Responses may be sent to us using the online response form.. Where possible, it would be helpful if this form was used. Alternatively, comments may be sent:

• by email to wills@lawcommission.gov.uk
• or by post to Wills Team, Law Commission, 1st Floor, 52 Queen Anne’s Gate, London, SW1H 9AG.

(If you send your comments by post, it would be helpful if, whenever possible, you could also send them electronically.)

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. Since then, we have continued analysing responses to our consultation and formulating our final policy.

In October 2023, we published the Supplementary Consultation Paper.

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.

Next steps 

Once the supplementary consultation period ends, we will analyse the responses to the 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, and to prepare a final report and to instruct Parliamentary Counsel to draft a bill that would give effect to our recommendations.

Contact

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