The Modernising Wills Report: the Law Commission’s recommendations explained

One of the most important documents a person might sign is a Will: yet only 41% of UK adults have one.

Recently the Law Commission published its Modernising Wills report Modernising wills: Final report – Law Commission. Through both updating - and streamlining - the law surrounding Wills, the Law Commission hopes to increase testamentary freedom, protect testators and provide further clarity and certainty for all.

Key Changes

Dispensing with the formal requirements necessary for the making of a valid Will

The Law Commission recommends giving power to the Court to dispense with the formal requirements necessary for the making of a valid Will, on a case-by-case basis.

Where the testator’s intentions are clear, there should be a mechanism to give effect to those intentions, even where there is no valid Will. 

It will take time to see the true implication of this recommendation, but it is a significant departure from the requirements to make a valid will. The focus will no longer be solely on any will made but also will be on any record the testator makes which may express their testamentary intentions – which might be notes, voice recordings or videos. A Court would need to be satisfied that the records are clear, that they show genuine intentions and that those intentions remain unchanged as at the time of death.

This may open up yet further challenges to what are, on the face of it, valid Wills and may foster uncertainty to beneficiaries, given the likely rise of challenges to wills.

Reduction of minimum age to make a will

The Law Commission has recommended reducing the minimum age of making a Will from 18 to 16.

Since the age to marry, legally, is 16, the Law Commission believes that it makes legal sense to be able to make a Will at this age too.

Abolition of automatic revocation of a will after marriage or civil partnership

Perhaps the most highly anticipated recommendation is that of abolishing the existing rule that a person’s Will is automatically revoked when they marry or enter civil partnership. The conviction behind this recommendation is that it will reduce predatory marriages and provide more certainty to testators.

The current rule - that marriage revokes your will - is outdated, based as it is on the premise that your testamentary intentions are bound to alter on marriage (the traditional belief that you would wish to benefit your spouse to a much greater extent once married). In the modern era, with more second marriages and blended families, this change is likely to protect beneficiaries. 

However, just as the existing rule that marriage revokes your will created some unfair outcomes, the proposed change to abolish that rule runs the risk of other, equally unfair outcomes, for example where a new spouse may have no protection at all if there is an earlier Will in place that does not consider or benefit them. In such instances, we anticipate a rise in claims by spouses under the Inheritance (Provision of Family and Dependants) Act 1975.

Undue Influence

Where undue influence is alleged - and there is evidence to provide reasonable grounds - the recommendation is that the burden of proof shift to the person seeking to show the validity of the Will to show there was no undue influence.

This is significant and we anticipate will result in a far greater number of undue influence claims being brought.

This is because at the moment, it is quite difficult to challenge successfully the validity of a Will through undue influence. It is widely accepted that undue influence tends to occur in private – no witnesses, in other words - and so that influence can be incredibly difficult to establish, not least because the influenced party has died. This recommendation gives the power to the court to infer that there was undue influence, where there was reasonable grounds to suspect it. Doing so will protect vulnerable testators - but may place innocent beneficiaries in the position of having to ‘defend themselves’ if reasonable grounds can be shown even where no undue influence existed.

Electronic Wills

Being able to make a Will electronically is likely to increase the statistic of only 41% of UK adults having a Will, as this will make the process more accessible and will reflect the current digital climate, particularly in law firms, where many solicitors now deal with clients entirely remotely.

However, electronic Wills means more scope for fraud, so they will need to be governed separately and require specific formalities - which differ to paper Wills - to ensure it is indisputably the testator and two independent witnesses signing the Will.

As we found during the Covid-19 pandemic, the provisions for electronic Wills are likely to increase claims that Wills have not been properly executed. Practitioners will need to make sure the necessary precautions are taken.

Testamentary Capacity

It has been proposed that the current test for testamentary capacity, under Banks v Goodfellow 1870 (the ‘Banks v Goodfellow’ test) should be replaced with the test under the Mental Capacity Act 2005. Although the two tests are similar, there is a key difference: the 2005 test assumes the testator has capacity, whereas in Banks v Goodfellow, it is for the testator to prove capacity.

This will increase work for non-contentious lawyers at the point of making the Will, as it will be a more onerous task to illustrate capacity as there is a suggestion there ought to be a code of practice on testamentary capacity to be followed. This is bound to create more disputes surrounding the process and therefore the reliability of the conclusion of capacity in will instructions.

Whilst the law remains the same for now, this comprehensive review highlights the priority the Law Commission places on the protection of testamentary intention and freedom, rather than formalities, as well as the clear desire for a more modern Will process. It is our view that many of these changes are very welcome in the industry but that certain recommendations will lead to a significantly greater number of challenges to the validity of Wills as well as other claims over the estates of the deceased.