The Wills Bill 2025 – a modernisation of Wills law?
For the best part of two centuries, will-making in England and Wales has been regulated by the Wills Act 1837. While the principles of this act have remained strong over time, modern developments and societal changes have made reform welcome.
In May, earlier this year, the Law Commission published a landmark report and a new draft proposing significant reforms to the existing Wills legislation.
This article will review these proposed changes and consider the key recommendations sought by the Law Commission.
What are the changes proposed?
Lowering the required age to make a Will
Under current legislation, you must be 18 to make a valid Will. Currently, if a child under 18 dies, their estate will be distributed under intestacy rules. In most cases with children, this means the estate passes to their parents.
The Law Commission have recommended changing this and lowering the age to 16. This is in response to the problems that can arise when a child is separated from one parent. The Law Commission have also stated that in exceptional circumstances, the court can authorise a child under the age of 16 to make a Will where an application is made.
More flexibility regarding Will formalities
The Wills Act 1837 ensures that the creation of a Will must meet strict formalities (signed in the presence of two witnesses and must be in writing, etc) to be valid. All these strict formalities are a necessity to create a valid Will; however, the Law Commission are proposing to shift this narrative and that the court should have the power to make valid Wills, even without these formalities, if intention can be proven.
The Bill also allows for the recognition of electronically made Wills and will allow testators to execute their wills digitally, provided the platform is secure. Furthermore, witnesses will be allowed to attest Wills via video calls, which will ease one of the biggest burdens with the current execution requirements.
Marriage or civil partnership revoking Wills
Currently, a Will is automatically revoked on the marriage or civil partnership of the testator, provided there isn’t an express clause guarding against this. This can be unknown to some testators, resulting in them not remaking their Will and their estate consequently passing under the rules of intestacy.
The new Bill abolishes this rule, and the Law Commission commented on this, saying that the Inheritance (Provision for Family and Dependants) Act 1975 provides the necessary protection to spouses who may suffer as a result of this change. This could be a recipe for a rise in Inheritance Act claims, and it will be interesting to see how this rule change plays out in practice.
Mental capacity standards
As it stands, the test to determine testamentary capacity comes from the case of Banks v Goodfellow and requires a testator to meet a certain criterion. Currently, to demonstrate capacity, the testator must:
- Understand the nature and effect of making a Will
- Appreciate the claims of those who might expect to benefit
- Know the extent of their property
- Not suffer from any disorder of the mind that distorts their judgment.
The new Bill, however, looks to incorporate a more modern test for capacity, found in the Mental Capacity Act 2005. This test provides that a person will have capacity until it can be shown that they do not, and is the current test that is used for several other matters, including Lasting Powers of Attorney.
Gifts restrictions
Currently, a legacy is invalid if it is made to someone who either witnesses the Will or is a witness’s spouse or civil partner. The Law Commission aims to crack down even harder on this and has suggested that a legacy will now also be invalid if it is left to a witness’s cohabitant, a person who signs the Will on behalf of the testator, and the spouse, civil partner, or cohabitant of a person who signs the Will on behalf of the testator. On this point, however, the Law Commission has suggested that where it is reasonable and just to do so, the court should have the power to save these legacies.
Undue influence
Where a testator has been coerced into making a Will, the Will will be held to be invalid. For this coercion to be proved, the person trying to prove the coercion needs to find the evidence, which can be difficult in practice, as any conversations that could be used as evidence will usually happen in private.
The Law Commission has examined this issue, and as a way to address it, has suggested that if reasonable grounds for suspicion can be evidenced to suspect that undue influence has occurred, the court will be able to infer that it took place. The burden of proof will then shift to the person defending the claim to demonstrate that no undue influence took place.
Rectification
Currently, the courts have very limited power concerning the rectification of a deceased will in situations where the Will drafter has misunderstood the testator’s intentions. In these cases, it is instead up to the beneficiary who has suffered a loss to make a claim against the will drafter.
The Law Commission propose to give the courts more power in these rectification situations where they are satisfied that the testator’s intentions are not reflected in the Will due to the misunderstanding by the Will drafter of the meaning or effect of the words used.
Summary
The Wills Bill 2025 is a landmark proposal to modernise a significantly old legal framework. The changes above are also key in improving the protection against financial exploitation and protecting vulnerable testators.
It is important to note that this is not law yet and may well have changes made to it before it does become law, so at this stage it is just something to keep a close eye on.
Expert Guidance on Making Your Will
At Nantes Solicitors, we provide clear, practical advice to help you create a Will that reflects your wishes and protects your loved ones. With offices in Bridport, Dorchester, Weymouth, and Portland, our experienced team ensures your Will is legally sound and tailored to your circumstances. Call us on 01305 771000 or visit our contact page to arrange an appointment.
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