The Law Commission’s report “Modernising Wills Law,” published on 16 May 2025, proposes the most significant reforms to will-making since the Wills Act 1837, including legal recognition of electronic wills and fundamental changes to how we create and validate testamentary documents.

These proposals represent a seismic shift in inheritance law that could transform estate planning for the digital age whilst addressing long-standing concerns about predatory marriages and outdated formalities.

Why Reform Is Needed Now

The current law governing wills dates back to 1837, when Queen Victoria had just ascended to the throne. In that era, the idea of electronic documents was pure science fiction. Today, we routinely sign contracts electronically, manage our finances online, and conduct most of our important business digitally. Yet the law still requires us to sign our wills with wet ink on paper, witnessed by two people physically present.

The COVID-19 pandemic exposed the limitations of these requirements starkly. Emergency legislation had to be introduced to allow video-witnessed wills, highlighting how ill-suited our current framework is to modern life. The Law Commission’s proposals aim to bring will-making into the 21st century whilst maintaining appropriate safeguards against fraud and undue influence.

Electronic Wills: The Headline Change

The most eye-catching proposal is the introduction of legally valid electronic wills. Under the proposed system, testators would be able to create, sign, and store their wills entirely digitally. This isn’t simply about allowing PDFs of traditional wills – it’s about reimagining how wills work in a digital environment.

The Commission proposes a sophisticated framework including digital signatures with appropriate security measures, electronic witnessing with identity verification, secure storage systems with audit trails, and clear protocols for accessing digital wills after death. These measures aim to make electronic wills more secure than their paper counterparts, with built-in protections against tampering and clear evidence trails of any changes.

Protecting Vulnerable People: The End of Automatic Revocation

Perhaps equally significant is the proposal to abolish automatic will revocation upon marriage. Currently, marriage automatically revokes any existing will unless it was made in contemplation of that specific marriage. This rule, intended to protect new spouses, has become a tool for exploitation in predatory marriage cases.

We’ve seen disturbing cases where vulnerable elderly people are married by those seeking to inherit their estates, with the marriage automatically revoking carefully planned wills. The Commission’s proposal would end this automatic revocation, requiring instead a conscious decision to change testamentary arrangements after marriage. This change alone could prevent countless cases of elder financial abuse.

Lowering the Age: Wills at 16

The Commission also proposes reducing the age for making a will from 18 to 16. This recognises that 16-year-olds can marry, work, and make other significant life decisions. In an era where young people may have substantial digital assets, life insurance, or compensation payments, the ability to make a will at 16 seems increasingly appropriate.

This change would be particularly significant for young people with serious illnesses, those who are parents, or those who have received compensation payments that need careful estate planning.

The Dispensing Power: When Intentions Matter More Than Formalities

One of the most radical proposals is giving courts a “dispensing power” – the ability to validate wills that don’t meet formal requirements if the testator’s intentions are clear. This would bring England and Wales in line with many other common law jurisdictions.

Currently, even the smallest technical defect can invalidate a will entirely, regardless of how clear the testator’s intentions were. The dispensing power would allow courts to give effect to documents that clearly represent the deceased’s testamentary wishes, even if they weren’t executed perfectly. This could prevent the harsh outcomes we sometimes see where grieving families discover a loved one’s will is invalid due to a technical error.

The Capacity Debate: A Clash with the Courts

Intriguingly, the Commission recommends replacing the Banks v Goodfellow test for testamentary capacity with the Mental Capacity Act 2005 test. This directly contradicts the High Court’s recent decision in Leonard v Leonard, which emphatically confirmed Banks v Goodfellow remains the applicable test.

This creates an unusual situation where the judiciary and law reformers are pulling in opposite directions. The Commission argues that having different capacity tests for different decisions is confusing and that the Mental Capacity Act provides a more modern, structured approach. However, until legislation is passed, practitioners must continue to apply Banks v Goodfellow, as confirmed by the High Court.

What Happens Next?

The government has provided an initial response to the Law Commission’s report, with detailed consideration expected by November 2025. The path from recommendation to legislation can be long, but the comprehensive nature of these proposals and the pressing need for reform suggest this may move more quickly than typical law reform projects.

Several factors may accelerate implementation. The ageing population makes will-making increasingly important, high-profile cases of elder abuse through predatory marriage have raised public awareness, the pandemic demonstrated the need for remote witnessing options, and digital transformation across other legal areas creates momentum for change.

Practical Implications for Estate Planning

While we await legislative changes, these proposals already have implications for estate planning. Clients should be aware that significant changes may be coming, though current law still applies. Those concerned about predatory marriage should know that protection may be forthcoming. Young people approaching 16 may soon have will-making options. And everyone should consider how their digital assets are managed after death.

The proposals also highlight the importance of regular will reviews. With such fundamental changes potentially on the horizon, ensuring your will remains valid and effective becomes even more crucial.

Balancing Innovation with Protection

The Law Commission has attempted to balance modernisation with protection against abuse. Electronic wills come with robust security requirements. The end of automatic revocation on marriage is balanced by maintaining other protections for spouses. The dispensing power would have clear limits and judicial oversight.

This balanced approach recognises that while the law needs updating, the fundamental purpose of wills – ensuring people’s wishes are carried out after death – remains unchanged. The challenge is creating a system flexible enough for modern life whilst maintaining protections against fraud, undue influence, and exploitation.

Conclusion

The Law Commission’s proposals represent the most comprehensive reform of wills law in nearly 200 years. From electronic wills to protection against predatory marriages, these changes could fundamentally alter how we approach estate planning.

While implementation may take time, the direction of travel is clear: will-making must adapt to modern life whilst maintaining crucial protections for vulnerable people. For practitioners and families alike, staying informed about these developments is essential for effective estate planning in the years ahead.

If you need advice on will preparation, updating existing wills, or protecting vulnerable family members’ estates, our specialist private client team can provide expert guidance tailored to your circumstances. We offer free initial consultations to discuss your needs. Call us on 0161 515 7329 or visit https://www.fiftysixlaw.co.uk/contact/ to leave your details and arrange a consultation.