Do Law Commission recommendations show the future of Wills?
The Law Commission has published its long-anticipated recommendations for reforming the law of Wills in England and Wales – and it’s clear that the current system, rooted in Victorian-era legislation, is long overdue for modernisation.
For individuals planning their estates, as well as professionals advising on Wills and Probate, these proposals signal the start of a significant shift in how we approach one of life’s most important legal documents.
Why does the law on Wills need to change?
The law on Wills has remained largely unchanged since the Wills Act 1837. While this historic piece of legislation has provided a solid framework for over 180 years, it’s become increasingly clear that it doesn’t reflect the realities of modern life – or death. From the rise of digital communications to changing family structures and evolving attitudes to end-of-life decisions, there’s a growing disconnect between the law and the world we live in.
This mismatch has real-world consequences. For example, strict formalities around signing and witnessing Wills – designed to prevent fraud – can inadvertently cause valid intentions to fail, leaving estates at risk of disputes. The COVID-19 pandemic highlighted these challenges, prompting emergency measures to allow remote witnessing of Wills, but this was only ever a temporary fix.
The Law Commission’s proposals aim to strike a balance between protecting vulnerable individuals and making it easier for people to make valid Wills that reflect their wishes.
What are the key recommendations?
The Law Commission’s final report, Making a Will, makes a number of recommendations and one of the most significant is a reform to the rules around revocation of Wills by marriage.
Under the current law, if you get married after making a Will, it is automatically revoked, unless it was made ‘in contemplation of marriage’. This often catches people out and leads to unintended consequences, such as a spouse inheriting by default under intestacy rules, even when the deceased intended otherwise.
The Law Commission proposes removing the automatic revocation rule, so a Will remains valid after marriage unless the individual chooses to revoke it. This change recognises that many people marry later in life, often after making detailed estate plans, and that automatic revocation can create uncertainty and undermine their wishes.
The more significant changes recommended in the report include:
- A new Wills Act: The Commission proposes a modern statute to replace the Wills Act 1837, bringing greater clarity and flexibility.
- Dispensing power for the courts: Perhaps the most radical change is the introduction of a ‘dispensing power’ that would allow courts to uphold a Will even if it doesn’t strictly comply with formal requirements – provided the person’s intention is clear. This could help prevent unfair outcomes where technicalities currently render Wills invalid.
- Electronic Wills: Recognising the role of technology, the Commission suggests a pathway for legally valid electronic Wills in the future, although it stops short of recommending immediate changes.
- Capacity and understanding: The report recommends updating the test for testamentary capacity to align with the Mental Capacity Act 2005. This would better reflect modern understanding of capacity and protect those who may be vulnerable.
- Adapting to change: The Commission also suggests that the law should respond flexibly to changes in technology, for example by allowing electronic Wills when safeguards are in place.
- Age consistency: The Commission proposes reducing the age at which an individual can make a Will from 18 to 16, bringing this in line with the legal age of getting married, joining the army and making medical decisions.
These proposals aim to make it easier for people to create valid Wills, while maintaining safeguards against fraud and undue influence.
What does this all mean?
These changes could offer greater peace of mind for those drafting their Wills, that their wishes will be respected, even if the formalities of a Will aren’t followed exactly. It may also provide reassurance that as society and technology evolve, the law will keep pace.
However, until these recommendations are implemented, the current rules still apply. That means Wills must still be signed in the presence of two independent witnesses and meet other formal requirements to be valid. Given the complexity of the law and the potential for costly disputes, seeking expert legal advice remains essential.
How can Wolferstans help?
At Wolferstans, we’ve been helping clients navigate Wills, probate and estate planning for generations. Our experienced team understands the importance of getting it right first time, every time. And we stay ahead of the changing legal landscape, so you don’t have to.
If you’re thinking about making a Will, or reviewing your existing arrangements in light of the Law Commission’s proposals, we’re here to help. We’ll guide you through the process, ensuring your Will reflects your wishes and protects your loved ones.
Contact our Wills, Probate & Trusts team today to start the conversation.