On 16 May 2025, the Law Commission of England and Wales finally published its long-awaited report entitled ‘Modernising Wills Law’. This moment marks a seismic shift in the legal landscape of testamentary law, proposing the most comprehensive set of reforms in over 180 years. At its core, the report seeks to bring the law governing Wills in line with contemporary realities – technological, social, and medical – while reaffirming the fundamental principle of testamentary freedom.
For private client practitioners and individuals alike, the implications of these reforms are significant and far-reaching. The proposals do not merely tweak technical formalities; they aim to recast the very framework through which we understand capacity, formality, autonomy, and protection in the context of Wills. In this article, we explore the key elements of the Law Commission’s recommendations, why they matter, and what they may mean in practical terms.
Why reform was needed
The current law on Wills, largely derived from the Wills Act 1837 and shaped by case law such as Banks v Goodfellow (1870), has proven remarkably enduring. Yet while its longevity speaks to its foundational soundness, the law has become increasingly misaligned with modern life.
People now live longer, form more complex family structures, and encounter later-life vulnerabilities, including cognitive decline, financial abuse, and digital isolation. Technological change has altered the way we communicate and record intentions, and societal expectations around autonomy and protection have evolved. The Law Commission has taken these shifts seriously, recognising that a rigid, formalistic system can all too easily frustrate rather than facilitate an individual’s final wishes.
Key proposals and their practical significance
The Law Commission’s report is not simply a checklist of legal tweaks – it is a carefully constructed vision for a testamentary system that is clearer, fairer, and better attuned to the lived experiences of those making and relying upon Wills. Each proposal forms part of a broader tapestry, seeking to reconcile personal autonomy with protective oversight, and legal certainty with evolving societal norms. Against this backdrop, we now examine the central proposals in detail:
1. Electronic Wills
The proposal to permit electronic Wills is perhaps the most eye-catching recommendation. It opens the door for documents created, signed, and stored digitally to be recognised as valid Wills.
The Commission is alive to the promise and peril of this change. On one hand, electronic Wills offer increased accessibility, particularly for individuals with disabilities, mobility issues, or limited access to legal services. On the other, they risk increased susceptibility to fraud, undue influence, and disputes over authenticity. The Commission stops short of immediate implementation, instead recommending that a future statutory instrument be introduced once adequate safeguards and secure technology are available.
The message is clear: the law must evolve, but it must do so with eyes open to the risks. Legal professionals will likely play a pivotal role in vetting electronic Will platforms, ensuring that the technology supports rather than undermines testamentary integrity.
2. Revocation on marriage/civil partnership
Currently, marriage or civil partnership automatically revokes a Will unless it is made in contemplation of the union. This default rule, while perhaps once logical in a world of linear family arrangements, now operates as a trapdoor – often unnoticed until it is too late.
The Law Commission recommends that marriage/civil partnership should no longer revoke a Will automatically. This change would prevent the unintentional disinheritance of children or other intended beneficiaries and could help counteract predatory behaviours, where vulnerable individuals are manipulated into unions that nullify previous testamentary arrangements.
Critics may argue that this places more onus on individuals to update their Wills, but the Commission’s view is that testators should retain control over their estate planning, rather than have it overridden by outdated default rules.
3. Dispensing power
One of the most important reforms proposed is the introduction of a dispensing power. This would allow the courts to recognise a Will as valid even where formal requirements, such as proper witnessing, have not been met, so long as the document clearly expresses the testator’s intent.
Such a change has long been advocated by practitioners frustrated by the injustice of Wills being struck down over technicalities, despite there being no doubt as to the deceased’s wishes. It is also consistent with practice in other common law jurisdictions such as Australia and Canada.
This is perhaps where the Law Commission shows its most humane instinct by recognising that law must serve substance as well as form. The dispensing power would allow the courts to prioritise intention and justice over rigid formalism, particularly in cases involving vulnerable or isolated individuals.
4. Testamentary capacity
The Commission proposes that the Banks v Goodfellow test for testamentary capacity, which many now consider to be outdated, should instead give way to the statutory framework set out in the Mental Capacity Act 2005. This alignment would bring greater consistency across legal contexts, ensure a more modern and medically informed approach, and facilitate better protection for those with fluctuating or limited capacity.
This proposal has provoked some debate. The Banks test has been judicially refined and applied for over a century, and many practitioners are familiar with its contours. Yet the Mental Capacity Act offers a clearer and more structured approach, grounded in functional assessment and supported by established case law in other fields.
While the transition may require a cultural shift in practice, it is a change rooted in fairness and medical realism.
5. Lowering the age for making a Will
Whilst the current age threshold for making a valid Will is 18, in its report The Law Commission recommended reducing it to 16. This reflects a broader social recognition of young people’s autonomy—those aged 16 can marry, join the military, or consent to medical treatment.
The change would be particularly significant for young people with terminal illnesses or estranged family relationships who wish to ensure that their estates, however modest, pass according to their wishes. It also serves an educative function: encouraging earlier engagement with legal planning and normalising discussions around death and legacy.
6. Undue influence
Proving undue influence in Will disputes remains notoriously difficult under the current legal test, which requires claimants to demonstrate coercion with direct evidence, which is often an impossible task if the only witness is the deceased.
The Law Commission recommends a more flexible approach, permitting courts to infer undue influence based on surrounding circumstances. This would bring Wills law into line with probate and equity doctrines in other areas, and provide greater protection for the vulnerable.
While this may increase the number of contentious probate claims in the short term, it ultimately strikes a better balance between respecting autonomy and policing exploitation.
Challenges, opportunities, and professional responsibilities
If enacted, these reforms would usher in a more responsive and modern testamentary regime—one that better supports individuals’ intentions, accommodates technological realities, and protects the vulnerable.
But reform comes with responsibility. For legal professionals, the challenge will be to guide clients through the new rules with clarity and care. For policymakers, the task will be to legislate with precision, particularly around the regulation of electronic wills and the scope of judicial discretion.
For individuals, the message is as timely as ever: a professionally drafted Will remains the best way to protect your wishes. The law may be modernising, but the importance of expert advice remains unchanged.
At Buckles Solicitors, we welcome the Commission’s proposals as a vital recalibration of testamentary law for the 21st century. Whether you are writing your first Will or revisiting an old one, these changes present an opportunity to reflect, plan, and ensure that your wishes are honoured with dignity and legal certainty.
We encourage anyone with questions about how these reforms may affect their estate planning to get in touch with our Wills and Probate team. The future of Wills may be modern, but the need for sound advice is timeless.
