Significant Changes have been Recommended to Modernise Wills Law in England and Wales
On 16 May 2025, The Law Commission of England and Wales published a detailed report arising from the first comprehensive review of the Wills Act of 1837 in almost 200 years.
The recommendations are noteworthy, and a draft Bill involving a complete rework of the Wills Act has been produced.
The content and course of the draft Bill through Parliament will be followed with interest in Australia.
The wills project of the Law Commission commenced in 2016.
The Law Commission concludes in its report that reform is needed in a number of respects, and notes that:
- The principle of testamentary freedom is a valuable aspect of owning property, giving owners the right to give their property to others on their death;
- Whilst the law governing wills is old, its age alone would not be a good reason to reform the law;
- “[M]any of the rules governing wills achieve policies or safeguards that reflect human nature and commonly held beliefs that remains as true or necessary today as they were in previous centuries.”
The summary of the report includes:
“However, some things have changed. Most people will live longer than their ancestors did, and, as a consequence, more people will suffer from ill health and a decline in their mental capacity that are commonly associated with old age. The property that the average person owns may be more valuable than it was in the past. Not so long ago, documents would have been in paper form only; but documents in electronic form are now far more prevalent than paper documents. We therefore think that reform is necessary.”
The Law Commission stated the aims of the project were to make recommendations to reform the law so that it better:
- Supports the exercise of testamentary freedom;
- Protects testators, including from undue influence and fraud; and
- Increases clarity and certainty in the law were possible.
Areas where recommendations were made for change include as follows.
Dispensing power
Giving the Court a dispensing power to order a will be valid despite not complying with formality requirements – such as provided for in s.18 of the Succession Act 1981 (Qld);
Age of testator
Reducing the age of a person being able to make a valid will from 18 to 16;
Rectification
The Court being able to rectify a will where it is satisfied that the will does not given effect to the testator’s intentions because the drafter failed to understand the meaning or direct effect of the language used in the will – as with that provided for in s.33 and s.33A of the Succession Act;
Statutory presumption of undue influence
Introduce a statutory presumption of undue influence, whereby “if the Court does infer that undue influence occurred, the evidential burden will shift to the person seeking to prove the will to satisfy the Court, on the balance of probabilities, that undue influence did not take place, and that the will did in fact reflect the testator’s own freely formed intentions”.
The proposed section 15 of the Bill to new Wills Act relating to testamentary undue influence states as follows:
15. Testamentary undue influence
(1) Subsection (2) applies if, in proceedings on a probate claim—
- a party alleges in any particulars of claim, defence or other statement of case that a person exerted undue influence over a testator in relation to the making of the testator’s will or a relevant change to the testator’s will, and
- there is evidence which provides reasonable grounds to suspect that the undue influence was exerted.
(2) In deciding the claim, the court may find the undue influence to have been exerted unless the contrary is proved on the balance of probabilities.
(3) In determining whether there is evidence which satisfies subsection (1)(b), the court must (among other things) have regard to any evidence about—
- the conduct, in relation to the making of the will or change, of the person alleged to have exerted undue influence over the testator;
- any relationship of influence between the person and the testator;
- the circumstances in which the will was made.
(4) For the purposes of this section a person exerts undue influence over a testator in relation to the making of the testator’s will or a relevant change to the testator’s will if the will or change is made as result of the person overpowering the testator’s volition (without convincing the testator’s judgment).
(5) In this section “probate claim” means any claim relating to the business of obtaining probate and administration, other than non-contentious or common form probate business (within the meaning of Part 5 of the Senior Courts Act 1981 (see section 128 of that Act)).
(6) Nothing in this section prevents a court from finding undue influence to have been exerted as a result of an allegation in subsection (1) being proved on the balance of probabilities.
Invalidating a gift
The rule invalidating a gift in a will to a witness, or to their spouse or civil partner (of that witness) should also be extended to the cohabitant of a witness, the person who signed the will on behalf of the testator and the spouse, civil partner or cohabitant of a person who signed the will on behalf of the testator.
However, the Court can save such a gift if it considers it just and reasonable to do so having regard to the conduct of that person relating to executing the will or proving the will’s validity.
Effect of marriage or civil partnership
The rule that marriage or civil partnership revokes a will should be abolished.
The Law Commission reason for this includes:
- “most people do not know about this automatic revocation rule. The result is that testators’ wills are being revoked without their knowledge, and without testators necessarily wanting their will to be revoked”;
- Further, “we are concerned that the rule that marriage revokes a will is possibly being exploited for the purpose of enabling “predatory marriage” ”;
- “we therefore believe that abolishing this rule will add a layer of protection for vulnerable people at risk of this insidious form of financial abuse”.
In Queensland, a will is revoked by the marriage of a testator pursuant to s.14(1) of the Succession Act.
Testamentary capacity
The test for whether a person has the mental capacity necessary to make a will is currently that as set out in the English case Banks v Goodfellow (1870).
The Law Commission notes that the Mental Capacity Act 2005 (MCA) provides the current test for whether a person has mental capacity to make a decision in many areas of their life, covering a broad range of financial and warfare decisions that may need to be taken on behalf of a person who lacks capacity.
The Law Commission states:
“The MCA creates a presumption that a person has capacity unless it is shown that they do not. It sets out a two-stage test. First, the MCA sets out the circumstances in which the person is taken to be unable to make a decision for themselves, because they are unable to understand the information relevant to the decision; retain that information; use or weigh that information as part of the process of making the decision; or communicate the decision. Second, the person’s inability to make decision as defined, must be caused by an impairment of the mind or brain, or a disturbance in their functioning. Where parts of the tests are satisfied, the person lacks capacity in relation to the specific decision. This lack of capacity can be temporary or permanent….”
The Law Commission continues further:
“There are wider benefits of including will-making within the scheme of the MCA as a whole. The MCA test provides a clear test of capacity. Adopting the MCA test will ensure that developments in the law on capacity generally will apply equally to the law governing testamentary capacity. It will also make the law more clearer for those who assess capacity as part of their roles – such a medical practitioners – in relation to a wide range of types of decisions”.
The Law Commission therefore recommended that the tests set out in the Mental Capacity Act 2005 should apply to all assessments of testamentary capacity.
The Law Commission however recognises that there is a long history of case law with regards to testamentary capacity over the last 200 years and that this case law will remain relevant to the operation of the MCA test when it is being used to assess someone’s capacity to make a will, and “in particular, it will continue to inform the information relevant to the specific decision of making a will.”
In this regard, the Law Commission recommends that the MCA Code of Practice which provides guidance to those assessing capacity under the MCA, should refer to and explain the elements of the Banks v Goodfellow test.
The Mental Capacity Act 2005 test presumes that a person has capacity unless it is shown that they do not. The Law Commission recommends that this presumption of capacity should apply in the context of making a will – as it presently does.
The Law Commission further recommends “that there should be a code of practice on testamentary capacity issued in the Mental Capacity Act 2005 on assessing capacity, and that anyone preparing a will or assessing capacity in their role as a professional or for payment should be required to have regard to it”.
Electronic Wills
The Law Commission notes that the formal requirements for a valid will remain nearly exactly the same as they were when the Wills Act 1837 was enacted.
The Law Commission recommends that provision should be made for electronic wills, on the basis that electronic wills must be secure. The Law Commission states:
“They must provide the same level of security against fraud and undue influence and provide the same level of certainty and evidence about the testator’s intentions as paper wills. Our review has led us to conclude that they can: that electronic wills can be made in a way that will provide strong evidence that the will was executed by the testator; cause the testator to think carefully about what they want to achieve with their will; direct the testator into complying with standard, clearly defined requirements; and provide sufficient protection for testator’s against fraud and undue influence when making their will.”
Further with respect to electronic wills, the Law Commission says that it should be possible for the requirement for witnesses – or a person signing on the testator’s behalf – to be in the testator’s presence to be met by remote presence by way or a visual transmission (for example by video call).
Draft Bill
The Law Commission has produced a draft Bill of an entirely new Wills Act, in order to provide “a single, modern Act that contains all the legislation governing wills in one place”.
The Law Commission concludes in its summary:
“Therefore, our draft Bill for a new Wills Act does a number of things. If enacted, it would amend the law to bring into effect our recommendations. Where we are not recommending that the law should be changed, the draft Bill converts existing provisions of the Wills Act 1837 into modern provisions and brings into one place some of the other provisions that are about wills, in other legislation, so that they can be found in one place. The draft Bill dispenses with provisions of the 1837 Act where we have concluded that they no longer serve any function.
The draft Bill has been written in a modern and accessible way, using updated and simplified language.”
These recommendations and the draft Bill will no doubt be closely considered by Australian state law reform commissions and their legislatures.
The Law Commission’s summary of its key recommendations is here.
The full report is here.
The draft Bill for a new Wills Act is here.
