Law Commission Report 2025 – Wills

“Everything has changed, but nothing has changed.” This quote has been floating around since the Law Commission’s report was published on 16 May 2025. This hotly anticipated report is a mere 494 pages long – light reading in comparison to the final Harry Potter book which came in at 607 pages. And not unlike the Deathly Hallows, many Private Client practitioners (and I’m sure some would say fanatics) stayed up until midnight to consider the report.

But why is the report so important? The Wills Act 1837 has remained largely unchanged, and in general terms it confirms that every adult can dispose of their property however they choose to do so, and the Act outlines certain formalities that must be complied with for a Will to be valid.

The report proposes several key changes, however, and if adopted by law, then this would alter the legal landscape in relation to the validity of Wills.

1. Revocation upon marriage

Under current legislation, if you marry after making a Will then your Will is no longer valid (unless you have made an express statement in your Will to prevent that from happening in expectation of that marriage), and you will need to make a new one. Interestingly, a divorce does not revoke a Will, but the ex-spouse is treated as if they had died before you. So why the change? Well, quite simply most people do not know that they need to make a new Will once they are married. This is particularly important for those who are on their second marriage, and who may not wish to change the existing provision they have made for their children and/or grandchildren. Furthermore, the aim is to reduce the risk of predatory marriages. The capacity threshold to marry is lower than that to make a valid Will, and a vulnerable person may not realise that their existing Will is revoked once they marry, and under the intestacy rules the new spouse could inherit a large share of, if not all, their assets.

2. Age

You must be at least 18 years of age to make a Will. If you die before that age without children, your estate passes to your parents. But what happens if a minor dies who happens to be very wealthy? For example, what if a minor has suffered a life limiting accident, received compensation, and their life expectancy isn’t expected to exceed 18 years old? What if they are estranged from their parents and would not wish for them to receive their assets upon death? The Law Commission suggests we adopt the approach the Mental Capacity Act 2005 takes which assumes that people aged 16 and over have capacity, unless it can be proved that they do not. This would mean that a 16 year old would be able to make a Will and decide how they would like to distribute their assets.

3. Electronic Wills

For there to be a valid Will, broadly speaking the Will must be in writing, signed (by the person making the Will, or by someone signing on their behalf) in front of two witnesses who sign the Will in the testator’s presence. With the development of technology over time, many legal and financial institutions now accept the use of digital signatures. But should that be the case for arguably one of the most important documents you will ever make? It could be argued that since 2020 when the global pandemic struck, our ways of working and attitudes have changed. The Law Commission recommends that electronic Wills in some form should be valid, but it is very firm in its position that there have to be safeguards. Technology is not foolproof, and the Commission is clear that there must be a strong system in place to keep the Will safe. This is even more prevalent as seen with the recent hacking incidents where highly confidential client details have been obtained and leaked. What such technology would look like remains to be seen.

4. Increasing the power of the Courts

As outlined above, there are several formalities which need to take place for a Will to be valid. Even if the Will is entirely clear, such as, “I leave my entire estate to X”, if it hasn’t been correctly executed then the Will is not valid. In some cases, a person’s estate could therefore pass to those who the deceased did not want to benefit. The Law Commission therefore proposes that if it is quite obviously clear what the deceased wanted to happen to their estate, then the Court should be permitted to order such wishes are followed, even if the testator made a mistake in the execution of the Will.

5. Rectification

Mistakes happen, and Wills aren’t immune to them. There could be a typographical error, or in the case of instructing somebody else to prepare the Will for you, the person drafting the Will may have misunderstood what the person wanted to achieve. Under the existing law, the Court cannot amend a Will if the person who wrote the Will did not understand what they had written. The Law Commission therefore recommends a more common sense approach in that the Court should be able to correct a Will if it is confident that the Will doesn’t say what the deceased wanted it to say because the draftsperson didn’t understand the meaning of the words they used. This could be a particularly useful tool of last resort where a lay person for instance has prepared their own Will and created ambiguity in the process.

6. Capacity

To make a Will, you must have the required level of mental capacity. The test for mental capacity was established in the case of Banks v Goodfellow (1870). In summary, the person making the Will must understand that they are making a Will and what the consequences of this are; be aware of what is in their estate; be aware of who they would generally be expected to make provision for; and be free of any mental condition which would affect any decision they make. The Mental Capacity Act 2005, however, adopts a different approach and assumes a person has capacity unless it can be proved that they do not. It considers whether a person can understand various elements of any given decision and if they cannot, it considers whether this is because of a specific impairment. The Law Commission has confirmed that it can be confusing to have two separate tests about an individual’s mental capacity to make a Will, and they recommend that the approach in the Mental Capacity Act is adopted to bring this into line with other tests.

Summary

The above is not a comprehensive list of the recommendations but highlights some key points. It is now for the Government to consider and respond to the Law Commission’s recommendations. Some argue that the draft Bill simply reflects modern life and ever-changing technology and so the proposals are not radical, whereas others argue that some of the proposals go too far and increase risks in the Will making process. Then there are those who currently sit on the fence – “Everything has changed but nothing has changed.” For now, if you are thinking about making or updating a Will but you’re unsure where to start, get in touch with one of our Private Client specialists today.