Law Commission Recommendations to Modernise Wills Law

The Law Commission has published a report, Modernising Wills Law, containing its recommendations to reform the law governing wills. The recommendations are aimed at supporting testamentary freedom, protecting testators, and increasing clarity and certainty in the law.

Wills law is governed by both legislation – primarily the Wills Act 1837 – and case law, some of which has been developing for hundreds of years. The Law Commission says that reform is required to take account of the changes in demographics, society, technology and medical understanding that have taken place since then.

The recommendations include:

• Giving the courts the power to dispense with the formality requirements to make a valid will, to be used on a case-by-case basis. This will address the strictness of the current law, under which non-compliance with the requirements makes a will invalid no matter how clear the person’s intentions were;
• Reducing the minimum age at which a person can make a will from 18 to 16. The Law Commission notes that other countries allow those under 18 to make wills, and the law presumes that children have capacity to make other types of decisions from age 16;
• Abolishing the rule that a will is automatically revoked if the testator marries or enters a civil partnership. This rule can be exploited by those who enter a predatory marriage with a vulnerable person in order to inherit from them;
• Making it easier to challenge a will on the ground of undue influence. The Law Commission recommends that, where there is evidence that provides reasonable grounds to suspect it, the courts should be able to infer that a will was brought about by undue influence;
• Making specific provision to enable electronic wills to be formally valid;
• Clarifying the law on testamentary capacity.

The report also contains a draft Bill for a new Wills Act that would give effect to the recommendations.