Modernising the Law of Wills: What You Need to Know About the Law Commission’s Latest Report

On 16 May 2025, the Law Commission published a report seeking to address the issues associated with the current law of Wills in England and Wales.

The project, which first began in 2016, is the first major analysis of the law in this area since the passage of the Wills Act 1837. The Law Commission sought to address achieve three broad aims through the project, namely:

• Offering additional support for the idea of testamentary freedom;
• Providing greater protection for testators, especially those who are vulnerable; and
• Increasing clarity and certainty in the law of Wills generally.

The Commission has given 31 recommendations spanning the breadth of the topic, and has provided a draft Bill which incorporates these recommendations: Wills-Report-Volume-II-Draft-Bill-and-Explanatory-Notes-Final.pdf.

At Browell Smith & Co, we believe it’s vital to keep our clients informed of legislative developments that impact their personal affairs. Here’s a brief summary of the Commission’s key proposals and what they could mean for you.

Supporting Testamentary Freedom: A Right to Decide

Testamentary freedom acknowledges that a testator, as the legal owner of their property until death, should be able to decide how to distribute their estate. This principle also recognises that individuals are best placed to assess the needs of their friends and family.

Modernising Validation: Embracing Digital Evidence

The Law Commission’s proposals have suggested that the courts should have greater powers to validate and rectify Wills that, under the current law, would either not give effect to the testator’s wishes or not be valid at all. In determining the testator’s true intentions, the court would be allowed to receive any record created by the testator, including electronic documentation and video recordings.

Lowering the Minimum Age for Wills

Another key recommendation is lowering the age to make a valid Will from 18 to 16 years old. This aims to ensure that younger individuals with assets can avoid dying intestate, which may result in unwanted distributions under the rules of intestacy.

Protecting Will-Makers: Stopping Pressure and Exploitation

Recognising the Risks Facing the Elderly and Vulnerable

When the Wills Act became law in 1837, average life expectancy was in the high 30s. Today, it’s around 81. With longer lives come increased risks of coercion, particularly for older individuals or those dependent on others due to illness.

Shifting the Burden of Proof in Cases of Suspected Undue Influence

The Commission proposes that if there are ‘reasonable grounds’ to suspect undue influence, the burden should fall on the alleged influencer to prove, on the balance of probabilities, that no coercion occurred. This reform provides an extra layer of safeguard for vulnerable testators.

Updating Witness Restrictions to Reflect Modern Relationships

Under current law, gifts to witnesses or their spouses/civil partners are invalid. However, many modern couples cohabit without formal legal status. The draft Bill extends restrictions to include cohabiting partners, preventing them from benefiting if they act as witnesses.

Making the Rules Clear: Understanding Mental Capacity for Wills

To make a valid Will, a testator must have sufficient mental capacity. Historically, two different tests have been used: one from Banks v Goodfellow and the other from the Mental Capacity Act 2005, leading to uncertainty.

The Law Commission recommends adopting the Mental Capacity Act 2005 as the sole legal test. This would be supported by a new Code of Practice, helping professionals and courts apply the test fairly and consistently.

What These Reforms Could Mean for You

This report marks nearly a decade of work and represents the most substantial reform proposal in Will-making law in almost 200 years. If enacted, it could fundamentally transform how Wills are drafted and validated in England and Wales.

Sarah Sackman KC MP, Minister for Courts and Legal Services, has acknowledged the need for reform, describing current law as “outdated” and calling for “detailed consideration” to protect testators’ freedoms.

Download the full Law Commission report (Volume I)

At Browell Smith & Co, we are closely monitoring these developments and will be ready to advise our clients on any legal changes as they happen. Whether you’re drafting your first Will, revising an old one, or supporting a loved one through the process, our team is here to help you navigate this evolving legal landscape.

For personalised advice or to review your current Will in light of these proposed reforms, get in touch with us today on 0191 250 3200 or email us at probate@browells.co.uk.