Trust Estate
Reform Of The Wills Act 1837: Proposed Changes, Possible Impact On Trusts, And Estates

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unchanged and is often viewed as archaic and outdated.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.