The law governing wills is a matter of fundamental importance, as it has the potential to touch the lives of virtually everyone. However, despite its significance, the legal framework currently underpinning wills in England and Wales is largely a product of the Victorian era, rooted in the Wills Act 1837 and a body of case law that has evolved over centuries. 

Recognising that a comprehensive review is long overdue, the Law Commission published a consultation paper in 2017 which recommended modernising the laws relating to wills “to take account of the changes in society, technology and medical understanding that have taken place since the Victorian era”. The consultation examined a number of areas for possible reform; however, due to competing demands on the Law Commission’s time, the project was paused for several years before a supplementary consultation paper was published in October 2023. 

On 16 May 2025, the Law Commission published its long-awaited final report on “Modernising Wills Law”, setting out various recommendations “aimed at supporting testamentary freedom, protecting testators, and increasing clarity and certainty in the law”. The report is accompanied by a draft Bill, intended to replace the Wills Act 1837.

Running to almost 500 pages, the report sets out 31 proposals and we comment briefly on a few of the key recommendations below.

• The introduction of electronic wills. At the time of the 2017 consultation, the idea of electronic wills was relatively novel; however, as a result of significant technological advancements and a rapid acceleration in the use of digital documents since then (in large part due to the Covid-19 pandemic), this is no longer the case. The Law Commission’s final report notes that, although some concerns remain about the protections offered by electronic wills, support has increased significantly since 2017. On this basis, and with a view to “future proofing” wills law, the Law Commission recommends that electronic wills should be expressly permitted provided they use a “reliable system” to identify the testator and witnesses, distinguish copies, and prevent unauthorised alterations or destruction. The crucial question of what system would be sufficiently reliable is left to the courts or to further regulations, and the Law Commission anticipates that there will be a further consultation by the Secretary of State before regulations are made.
• The introduction of a court power to dispense with the formality requirements for making a valid will if it is satisfied that the will shows the clear and genuine testamentary intentions of the deceased individual, and the court is satisfied that their wishes remained unchanged at the time of their death. The report acknowledges that such a power could introduce an element of uncertainty, but takes the view that the ability to give effect to an individual’s wishes is justification for this, and notes that similar powers already operate successfully in other jurisdictions (such as Canada, Australia and New Zealand). 
• Lowering the age at which a person can make a will from 18 to 16 years, with the court having the power to authorise a child under 16 to make a will. The aim here is to eliminate the injustices which can arise (in rare cases) under the current rules where a child dies and the distribution of their estate is governed by the intestacy rules (which may not align with the child’s wishes).
• Widening the circumstances in which the court can rectify a will to include drafting errors (i.e. where a will does not give effect to the individual’s intentions because the drafter failed to understand the meaning or direct effect of the language used in the will). Currently, the court’s power to correct mistakes in wills is relatively limited, which can result in outcomes that do not reflect the testator’s wishes.
• Abolishing the rule which revokes wills on marriage or civil partnership. Under current rules, if a person already has a will, that will is (usually) revoked automatically when they later marry or enter into a civil partnership. If the person fails to make a new will following their marriage or civil partnership, the intestacy rules (which generally operate to prioritise spouses or civil partners over other potential beneficiaries) apply to the distribution of their assets on their death. The Law Commission’s view is that this rule is not well known amongst the general public, is contrary to the principle of testamentary freedom, and disproportionately favours spouses and civil partners over other potential beneficiaries. The report also highlights a concern that the rule can be exploited for the purpose of enabling “predatory marriages”. In light of all these considerations, the report therefore recommends abolishing the rule in order to achieve a fairer balance between the interests of various potential beneficiaries. Whilst the Law Commission recognises that this would disadvantage spouses and civil partners (as they would no longer be able to rely on the intestacy rules), it notes that they would remain protected by the Inheritance (Provision for Family and Dependants) Act 1975, which allows certain individuals (including spouses and civil partners) to make claims against a deceased person’s estate if they have not received reasonable financial provision under the terms of their will or (if there is no will) the intestacy rules.
• Reforming the test for testamentary capacity. The current test for testamentary capacity is based on case law dating back to the 19th century. However, there is also a more modern test for mental capacity, set out in the Mental Capacity Act 2005, which applies in certain circumstances. The Law Commission has concluded that “there is no logical justification for two different tests” and recommends that the test set out in the Mental Capacity Act should apply to all assessments of testamentary capacity, and that a code of practice on testamentary capacity should be issued, with a requirement for practitioners to have regard to it.
• Inferring undue influence. Under current rules, it can be difficult to challenge a will on the grounds of undue influence, as the burden of proof is high and lies with the person asserting undue influence. The report notes that it is often impossible to meet the required burden of proof as undue influence often happens behind closed doors by someone close to the testator, and only comes to light following the individual’s death. In order to provide better protection to vulnerable testators, it is recommended 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. In such circumstances, the evidential burden will shift to the person seeking to enforce the will, requiring them to satisfy the court that undue influence did not take place.

The Government has welcomed the report as “an important and timely review of the existing law” but notes that, as the proposals are significant and wide ranging, they will require detailed consideration “to ensure that reform does not compromise existing freedoms or protecting the elderly or vulnerable in society”. We can, however, expect a full response from the Government within the next 12 months, at which point we will discover which, if any, of the Law Commission’s recommendations have received Government support.