Law Commission publish their recommendations for reform on Wills

The Law Commission has published its long-awaited report on its recommendations for reform on how we make valid Wills. This has been an ongoing project since 2016, with the initial consultations issued in 2017 and a supplementary consultation in 2023. 

The main piece of legislation which sets out the rules governing whether a Will is valid, the Wills Act 1837, is almost 200 years old. The Law Commission’s report makes a number of recommendations to bring the law into the 21st century. 

In total, the report makes 31 recommendations for reform, which include:

Aligning the testamentary capacity test with Mental Capacity Act 2005

The report recommends changing the test for assessing a person’s mental capacity to make a Will, bringing it into line with the Mental Capacity Act 2005. The capacity test in the 2005 Act already applies to many other types of decisions. 

Lowering the age requirement

It is proposed that the age requirement for a person to make a valid Will is reduced from 18 years to 16 years.

Recognising electronic Wills

In light of the widespread use of electronic documents and electronic execution in legal transactions, it is recommended that new laws are introduced to recognise electronic Wills as valid (subject to meeting additional formality requirements).

Abolishing revocation upon marriage

The Law Commission recommends that the rule that entering into marriage or civil partnership automatically revokes a person’s Will is abolished.  This recommendation has arisen from a concern regarding the use of “predatory marriages” to revoke a vulnerable adult’s Will and benefit under the intestacy rules.

Extending restrictions on who can witness a Will

As a form of protection for the testator, a gift in a Will to a person who acts as witness to that Will does not take effect. This rules also applies to gifts made to a witness’s spouse/civil partner.  The report proposes extending this restriction further to include a cohabitant of a witness, and to capture a person (or their spouse/civil partner/ cohabitant) who signs the Will on behalf of the testator, if the testator is unable to sign themselves.  

Shifting the evidential burden for undue influence

The report suggests that, where there is sufficient evidence to suspect undue influence has been present, the evidential burden of proof should be shifted to the person seeking to uphold the Will (rather than the person seeking to challenge the Will).

Alongside the recommendations, the Law Commission has published a draft Bill to create a new Wills Act. The proposed new Wills Act is intended to consolidate all the rules, including those that are not subject to reform.  

The next step is for the Government to respond to the recommendations. An interim response is expected within 6 months, with a comprehensive response to follow within a year. 

For further insights into what changes we can expect if the legislation is implemented as proposed, please see our Private Wealth Disputes team’s commentary here.