Will Reforms: Modernising the Wills Act 1837 in England and Wales

The Wills Bill 2025 is a proposal to modernise and reform the law surrounding wills in England and Wales.

The Wills Act 1837 was introduced almost 200 years ago. It standardised the rules for creating, executing and validating wills. Although still in force, the Act has been amended by later legislation and interpreted through common law.

The Wills Bill 2025 was outlined in the Law Commission’s final report Modernising Wills Law, published on 16 May 2025. It aims to reform the outdated Wills Act 1837 and introduce a modern, practical approach. The Bill reflects changes in society, medicine and technology. It seeks to protect testamentary freedom, meaning people can choose how their estate is distributed. At the same time, it aims to guard testators against fraud and undue influence. It is hoped that the reforms will make the law clearer and more accessible.

What is the Law Commission’s proposed reform of the law of wills?

Some of the headline will reforms proposed include:

The Introduction of Electronic Wills

The Law Commission has recommended that electronic wills are legally recognised. However, they must meet strict security and authenticity standards. For example, secure electronic signatures, reliable storage solutions, and registration on a government-approved central storage system. This includes provisions for digital signatures and potential remote witnessing (e.g., via video call, as was the industry standard practice during the pandemic).

The Abolition of Automatic Revocation of a Will upon Marriage or Civil Partnership

The Law Commission published recommendations that abolish the rule under section 18 of the Wills Act 1837. This rule automatically revoked an existing will upon marriage or civil partnership unless the will contained specific wording that stated the existing will was made in contemplation of such an event.

The proposal recommends that all wills would remain unless specifically revoked by the testator. The reason for this recommendation was to combat concerns regarding ‘predatory marriages’. This is where typically vulnerable persons had been coerced into marriage for the financial gain, leading to the unintended disinheritance of beneficiaries (usually children from a previous relationship).

A Unified Test for Testamentary Capacity & Greater Protections against Undue Influence

Up until now, the gold standard for the common law test of Testamentary Capacity is contained in the judgment of Banks v Goodfellow [1870].  This is colloquially known as the Banks v Goodfellow test.  Additionally, more modern legislation in the Mental Capacity Act 2005 (MCA) has also expanded upon the assessment of testator’s capacity and applies for court-made statutory wills. The Law Commission has recommended that the modern test contained in the MCA should apply for all assessments of testamentary capacity (the test of whether someone has the required mental capacity to make a will).

The report also recommends statutory guidance for professionals to follow when assessing capacity.

Furthermore, the Courts will also have enhanced discretion to infer undue influence based on circumstantial evidence. This will shift the burden of proof onto the party benefiting under suspicious circumstances where necessary. The proposal will introduce a statutory doctrine of undue influence with a clear definition: pressure deliberately applied to make a will the testator would not have otherwise made.

Under the current law, it can be very difficult to prove to the court that the testator was subject to undue influence. This is because it often occurs behind closed doors and sometimes over a long period of time. The reforms aim to better protect vulnerable testators from financial abuse and coercive behaviour.

Minimum Age to make a Will

The Law Commission proposes that the minimum age to make a will be reduced from 18 to 16. It also proposes to give the courts the power to authorise even younger children to make a will in exceptional circumstances.

The Introduction of a Dispensing Power

The Law Commission has recommended that courts be a ‘dispensing power’ to validate wills that do not meet the strict formalities of section 9 of the Wills Act 1837. For instance, where the circumstances of the creation of a will prove that the testator had a clear and genuine intention for the will to be valid which remained unchanged at the time of death, but had failed to have it properly witnessed or signed.

The proposals would seek to prevent valid wishes from being invalidated due to technical or procedural failures, reducing unjust outcomes for beneficiaries.

What are the potential risks or concerns about the proposed will reforms?

Legal professionals and the Law Society have expressed concerns about the Law Commissions proposals.

• Electronic wills could be at a greater risk of fraud. Digital formats could be accessible by hackers and could be subject to unauthorised alterations.
• The requirements for remote witnessing and electronic signatures may be harder to verify for authenticity.
• Less tech savvy testators may struggle with the formalities for signing an electronic will. However, the proposals do not make any changes to the existing way of signing a will in hard copy.
• The security and long-term reliability of a central government storage system is uncertain. Questions remain as to how it may handle data breaches, system failures or changes in technology in the future.
• Many professionals also have doubts about the proposals for a unified test of testamentary capacity. The longstanding Banks v Goodfellow test is held in high regard. Some are worried that adopting the Mental Capacity Act test could oversimplify the nuances of testamentary capacity.

When will the new Will reforms take effect?

As of July 2025, the Wills Bill 2025 is still in draft form. It has been submitted to Parliament and awaits review. The government is expected to respond to the proposals by November 2025. The new law may take effect in May 2026.

How can individuals prepare for reforms in the law of wills?

For now, the law has not changed. If you are concerned about how the reforms might affect your will, it’s important to seek legal advice.

At Crane & Staples, our experienced team is here to help. Please call us on 01707 329333 or email law@crane-staples.co.uk  to arrange an appointment.