As of May 16, 2025, the Law Commission has published its "Modernising Wills Law" report, introducing a draft Bill for a new Wills Act aimed at overhauling the outdated Wills Act 1837 which still underpins will-making today. The proposed reforms address contemporary societal and technological developments, focusing on protecting vulnerable individuals and modernising will-making processes.
Solicitors at Rowlinsons contributed to the Law Commission’s consultation process in the run up to the publication of this report, including debates on whether or not marriage should automatically revoke a person’s will. We are excited to see developments in this area as a step in the right direction to bring the law up to date and make it fit for the modern age.
Key Proposals in the Draft Bill:
- Abolition of Automatic Revocation of Wills by Marriage:
The draft Bill proposes ending the rule where marriage or civil partnership automatically revokes a pre-existing will. This change aims to protect against "predatory marriages," where individuals exploit this rule to inherit from vulnerable persons, often the elderly or those with diminished capacity. By severing this automatic link, the reform seeks to prevent unintended disinheritance of family members.
- Recognition of Electronic Wills:
Acknowledging the digital age, the Commission recommends legal recognition of electronic wills, provided they meet specific security standards. These standards include secure electronic signatures, reliable storage solutions, and measures to prevent fraud and undue influence. The move aims to make will-making more accessible and reflective of modern practices.
- Introduction of a Dispensing Power:
The draft Bill introduces a "dispensing power," allowing courts to uphold wills that do not meet formal requirements if clear evidence shows the testator's intent. This provision seeks to prevent valid wishes from being invalidated due to technicalities, especially benefiting those who create informal wills without legal assistance.
- Alignment of Mental Capacity Standards:
The Commission proposes aligning the mental capacity requirements for making a will with the Mental Capacity Act 2005. This alignment aims to provide clearer guidance on assessing a testator's capacity, replacing outdated legal tests and ensuring consistency in evaluating an individual's ability to make a will.
- Enhanced Safeguards Against Undue Influence:
To better protect vulnerable individuals, the draft Bill suggests allowing courts to infer undue influence based on circumstantial evidence, rather than requiring direct proof. This change acknowledges the challenges in proving coercion, especially when it occurs privately, and aims to make it easier to contest wills made under suspicious circumstances.
Next Steps
While the Law Commission has published the draft Bill, its implementation depends on government action. The proposed reforms have garnered support from legal professionals and advocacy groups, emphasising the need to modernise will-making laws to reflect current societal norms and technological advancements. However, concerns remain regarding the potential for increased fraud with electronic wills and the necessity of robust safeguards to protect vulnerable individuals.
The draft Bill represents a significant step toward updating the legal framework governing wills in England and Wales, aiming to make the process more accessible, secure, and reflective of individuals' true intentions.