Is it time to rewrite the law of wills?

The Law Commission has published recommendations to reform the law of wills in a new report which sets out proposals aimed at promoting testamentary freedom.

Vicki Gulliver, partner and head of the Probate team at Lodders, outlines the proposals and the need for reform in this important area of the law.

Why do wills need reforming?

The law around wills has not been fully amended since the Wills Act of 1837 and, unsurprisingly, society has changed a lot since then.

Updates to the law surrounding wills are urgently required for many reasons, including:

• Family structures have changed significantly, with remarriage, divorce and blended families being increasingly common and creating complexities that current laws don’t fully address
• People are living longer than before, and because of this, more individuals are experiencing declined mental capacity due to old age or illness
• Property is typically worth more than it was in the past, meaning more wills are contested, and it is important that inheritance is laid out clearly
• We are living in a digital age – the law currently focuses primarily on paper-based wills, but in an increasingly paperless society, reforms will need to address the possibility of electronic wills.

What reforms are the Law Commission proposing?

In May 2025, the Law Commission published its final report on “Modernising Wills Law”, an almost 500-page document that sets out new proposals to modernise the law. These recommendations aim to increase clarity and certainty in the law. The report is accompanied by a draft Bill, intended to replace the Wills Act of 1837.

There are 31 new proposals set out in the Law Commission report, with the most significant of these outlined below.

Introducing electronic wills

 One of the key areas highlighted in the report is the possibility of introducing electronic wills.

The requirements for making a will valid have remained for the most part unchanged since the Wills Act of 1837. During the COVID-19 pandemic, a temporary amendment was made to the Act, lasting from July 2020 until January 2024, which introduced video witnessing of wills. This temporary legislation stated that the normal requirement for two people to witness a testator signing their will in person could now include remote witnessing by video link.

Whilst the government decided to reinstate the original 1837 Wills Act in early 2024, the temporary amendment clearly demonstrated the benefits of being able to witness wills remotely.

If electronic wills are to be introduced, the Law Commission has recommended the implementation of additional safeguards to ensure protection against fraud and undue influence.

Marriage or civil partnership should not revoke a will

Under the current law, if an individual already has a will, that will is automatically revoked if they marry or form a civil partnership. If they then fail to make a new will following their union, then intestacy rules will apply to the distribution of assets after their death.

The Law Commission believes this rule is not common knowledge amongst the general public and disproportionately favours spouses and civil partners over other beneficiaries. There is also a concern that this rule could be exploited and that abolishing it will resolve the increasing problem of predatory marriages.

Inferring undue influence

Under current rules, if someone wants to challenge a will on the basis of undue influence, they must be the one to prove it. However, it is often impossible to provide proof of this, as undue influence typically happens behind closed doors and may only be realised following the individual’s death.

The new recommendation states that the courts should be able to infer that a will was made as a result of undue influence where there are reasonable grounds to suspect it. This means that the person seeking to enforce the will must provide evidence that undue influence did not take place, rather than the reverse of this.

Lowering the age for making a will

Under current law, when a child passes away, any property they own is distributed according to the rules of intestacy. In most cases, this means their estate is divided between both parents. However, this can lead to unfair outcomes in rare circumstances; for example, if a child does not wish for one parent to inherit because they did not have an active involvement in their life.

The Law Commission suggests that that children should be able to make wills from the age of 16 rather than 18. This aligns with the law on mental capacity, which governs questions of mental capacity for those aged 16 and over.

Clarification on testamentary capacity

The report recommends that the test for testamentary capacity should align with the Mental Capacity Act 2005, similarly to all other capacity decisions. The current test for mental capacity is based on case law dating back to the 19^th century, so the modernisation of this is much needed.

When are the reforms likely to be implemented?

As well as the Modernising Wills Law report, the Law Commission has produced a draft Bill of a new Wills Act that puts all new legislation governing wills in one place.

This report and draft Bill is now with the government to consider and respond to. The responsible minister will respond to the recommendations as soon as possible, with at least an interim response required after six months and a final report within a year.

Support with your will

Whilst not yet law, the proposed reforms indicate that the landscape of wills and probate is set to undergo a significant shift. We will be following developments in the modernisation of wills closely.

If you have any questions about the proposals, or wish to review your will, our friendly Probate team is here to help. Get in touch with our experts here.