This post has been contributed by Amanda Taylor, University of London Teaching Fellow for Equity and Trusts.
A will is a document, written during your lifetime reflecting your wishes for disposal of your property after your death.
In the England and Wales we allow people to write a will and then change their mind and write another, using words like “I revoke all previous wills”. Dating the will is quite important to allow the executor to establish which is the final will, should the previous versions not have been destroyed.
To make a will valid it has to comply with s9 Wills Act 1837 and state “… that no will shall be valid unless it is in writing and signed by the testator, or by someone else in their presence and by their direction.” It also requires that the signature is “in the presence of two or more witnesses present at the same time”.
It is not a complex set of requirements but does involve a certain amount of planning to get two willing signatories in the same room at the same time as the testator and many people fall foul of the rules and consequently die without even knowing they have died intestate, thus leaving the division of their estate up to the statutory intestacy rules.
Is it time for change then? Apparently yes, according to the Law Commissioners. In May 2025 in the Modernising Wills Law Report it proposed that the rules are modernised.
In this blog we will consider some of the main proposals and the reasons they have been suggested.
Proposal 1: Allowing wills to be made digitally
Allowing wills to be made digitally seems to be in line with the now ‘ordinary’ way of communication. It has to be pointed out that many people nowadays do not have access to paper and something to write with. Computers and phones are the way most people send messages. The problem, of course, is security. It is suggested that to protect the testator from fraudulent copies the signature is linked to their own already verified signature together with some sort of electronic tracking of versions created.
Proposal 2: Allowing the court discretion to set aside execution formalities in appropriate circumstances
Setting aside execution formalities if appropriate allows the intention of the testator to be followed. This seems to correlate with the exceptions we find in many Equity cases.
Proposal 3: Updating the standard test for testamentary capacity to be as given in the Mental Capacity Act 2005 rather than Banks v Goodfellow
The Mental Capacity Act 2005 starts with the presumption that the testator has mental capacity. Unlike Banks v Goodfellow [1870] UK Law Rp KQB 74 where the testator’s capacity has to be scrutinised, the assumptions would be that unless proved otherwise, the testator is writing what he intends to write with full knowledge of the consequences.
Proposal 4: Reducing the minimum age for making a will to 16
It proposes that children of 16 years of age should be allowed to write a will, again aligning with the Mental Capacity Act 2005. Also, under certain circumstances children younger than 16 will be allowed to write their own wills, thus stopping any of their assets falling to be distributed under the intestacy rules.
Proposal 5: Abolishing the principle of marriage automatically revoking a will
The current rule is that remarriage automatically revokes a will. Many people do not know of the rule and therefore are putting themselves into the category of people without a valid will. The other worry is that predatory marriages (marriages made because of coercion or threat) may occur, whereby the person coercing them might know the current rule but the now intestate spouse does not, and so unintentionally shares their estate automatically with the new spouse.
Conclusions
Although these proposals are welcome in most quarters there is some worry about the possibility of fraud being made easier. It will never be simple to change such deep-rooted rules and the danger is that it will perhaps swap one type of fraud for another.
As you can see the proposal was nine months ago and as yet, nothing has been done.
Although it is widely acknowledged that the current rules are out of date the Law Commission does not appear to be rushing to reform them. To ensure trust in the system the changes must be robust and trustworthy.