Published on 16 May 2025, the Law Commission Report on modernising the law governing wills has put forward various changes that, if approved, will mark the most substantial changes to the Wills Act since it was introduced in 1837 (for England and Wales). The proposals will have far-reaching impacts on the future of trusts and estates.

Following the recent publication of the Law Commission’s report on modernising the law of wills in the UK, Hayley Robinson (pictured), private wealth disputes specialist at law firm Stevens & Bolton, writes here about the dual considerations of this change. Robinson argues that practitioners should largely welcome these changes given that they are providing much needed clarity. She does, however, raise concerns about a potential spike in disputes – particularly surrounding what electronic wills will look like in practice in the absence of age-old formalities. 

The editors are pleased to share these ideas and hope they spark conversations. Please comment if you wish to do so. The usual editorial disclaimers apply. Email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com

Published on 16 May 2025, the Law Commission Report on modernising the law governing wills put forward various changes that, if approved, will mark the most substantial changes to the Wills Act since it was introduced in 1837. The proposals will have far-reaching impacts on the future of trusts and estates – but what exactly do they entail and where might these changes be most keenly felt?

Are the recommendations from the report to be welcomed? 
The context for change is important. The Wills Act was given Royal Assent by Queen Victoria just days after she ascended to the throne approaching 200 years ago. In the time that has elapsed societal changes have included: the suffragette movement, two world wars, the end of the British Empire and the advent of the internet and electronic communication all alongside longer life expectancies, improvements in medical science, increases in property prices and changes in the modern family (with the most common dynamic now being the cohabiting couple). Despite these major societal shifts, the law relating to wills remains largely unchanged and is often viewed as archaic and outdated. 

Key recommendations include changes to what the courts can do: including having the power to “dispense” with formality requirements on execution; the power to rectify a will because of an error in drafting in more circumstances where it is currently allowed; and the ability to infer undue influence provided there is evidence of reasonable grounds to suspect it. Further core proposals suggest lowering the age for making a will from 18 to 16; abolishing the rule that marriage revokes a will, making the Mental Capacity Act 2005 test the test for testamentary capacity; and a provision for electronic wills with a system designed to ensure security.

The vast majority of the recommendations made by the Law Commission will be welcomed by practitioners and hopefully met with parliamentary approval in due course. Attempts to reform the legislation so that it reflects modern life more accurately, encourages testamentary freedom, recognises improvements in technology and an increasingly digital way of life are to be applauded. The reforms would also address significant challenges and inconsistencies in the current law – for example, introducing one test for capacity under The Mental Capacity Act, a move away from the current system of two tests.

Encouragingly, the recommendations aim to tackle potential exposure of elderly and vulnerable testators, for example dealing with predatory marriages (see more below). The Commission has also recognised that the current test for proving undue influence (where a testator is coerced against their will into making provision for the influencer) may prove an insurmountable challenge – the proposal is that, provided there is evidence of reasonable grounds of undue influence, the courts will be able to infer it, reducing the current threshold test which often proves to be an obstacle and cost risk for claimants. 

Notwithstanding the overwhelming positives of the proposed reforms, they almost certainly also bring with them the potential for increased litigation and disputes relating to wills, particularly where the introduction of electronic wills and a “dispensing power” of the court is concerned. 

How does the report propose to deal with issues around predatory marriages? 
The current revocation rule on marriage facilitates exploitation of the elderly and vulnerable by way of “predatory marriages” (particularly in terms of financial abuse which has increased in recent years, spiking around the Covid pandemic), so one of the most welcome of the recommendations is the proposed abolition of the rule that marriage revokes a will. The rule is one that most people were unfamiliar with, according to the consultation process, and can often have unintended, potentially catastrophic consequences. 

As matters stand, when a marriage takes place it instantly revokes any existing will. In the instance of a predatory marriage, this means that the vulnerable or elderly victim of the marriage can be exploited for their wealth, with the predatory spouse automatically becoming the principal beneficiary of their new spouse’s estate under the intestacy rules. This can mean that children from previous relationships or other intended beneficiaries of the elderly persons estate are disinherited over the predatory spouse (who may well have been married for a matter of days or weeks).  

Injustices created by this rule are only made worse by the fact that the test for capacity to marry is lower than the capacity required to make a will. In practice, this means that once a predatory marriage has taken place, the victim to that marriage may lack capacity to execute a new will. Assuming that the testator is still alive, their family’s only remedy is to seek the intervention of the Court of Protection for a statutory will to be made. 

Whilst principally aimed at tackling the problem of predatory marriages, abolishing the rule revoking a will also recognises that, increasingly, couples are living together for long periods as cohabitees without being married such that the revocation rule no longer reflects modern realities. 

Which of the reforms may result in an increase in litigation, if approved? 
The ability in the proposals of the court to infer undue influence is a significant change to the current law which may result in wills that are genuinely the product of coercion and influence, being admitted to probate. Whilst positive, this change may well see an increase in litigants prepared to plead undue influence as a likely consequence of a lowering of the threshold test – whereas now the burden of proof is considered too high, there will be many who consider the ability to infer undue influence as going too far the other way and making the burden too low.  

By increasing the court’s powers to rectify wills, it seems inevitable that the result will be increased applications to court based on errors in the drafting process. What will be interesting if this recommendation is introduced is how the courts will deal with the costs of such applications and whether they will fall within the probate exceptions to the general rule (i.e. with costs coming from the estate), or perhaps the subject of a third-party costs order against the draftsperson responsible. 

Caution should be had when considering the “dispensing power” of the court to approve otherwise invalid wills failing to comply with the requisite formalities to execute a will. This dispensing power could create significant uncertainty, potentially increase the potential of litigation and attempts to adduce a will where one would not otherwise be valid – particularly following suggestions that the court would be able to look at any record made by the testator which expresses their testamentary intentions.  

What are the risks and rewards of electronic wills? 
The proposal to introduce electronic wills creates significant challenges which should not be underestimated. Indeed, the report leaves us with more questions than answers, though it cannot be denied that moving towards a digitalised system is inevitable. The introduction of electronic wills and the ability to prove or challenge them could represent the future of contentious probate. The suggestion that a reliable system is used to secure the electronic wills also raises the question of why there is no such system for existing paper wills and will not necessarily be foolproof in determining whether a will exists.