Private Wealth and Succession Planning
Rekha Toor
October 2025
The Law Commission’s 2025 report, Modernising Wills Law, proposes transformative changes to the legal framework governing wills in England and Wales. For contentious probate practitioners, these reforms are more than theoretical – they could redefine how we approach disputes, especially in areas such as testamentary capacity and undue influence.
Whilst the Law Commission’s report sets out 31 recommendations, this article intends to comment on some of the key ones.
Testamentary Capacity: A Shift to the Mental Capacity Act 2005
One of the most significant recommendations is the replacement of the historic Banks v Goodfellow test with the more modern and widely applied test set out in the Mental Capacity Act 2005 (“MCA”). It has been recommended that with the MCA Code of Practice, reference to and an explanation of the Banks v Goodfellow test should be included in the guidance on testamentary capacity.
This recommendation is likely to bring changes in everyday practice where practitioners are used to the current test so there will naturally be a period of adjustment and education required. This may however increase the number of disputes if there are inconsistencies with the way in which assessments of capacity are carried out.
Undue Influence: A More Accessible Route for Challenges
The evidential burden is notoriously high, often requiring proof of coercion that overtakes the testator’s free will, which is seen as an almost impossible standard once the testator has passed away. Currently the burden of proof is required to be discharged by the individual who is challenging the will. The proposed reforms aim to change this. Courts would be empowered to infer undue influence from the circumstantial evidence that raises reasonable suspicion, including amongst other matters: the conduct of the individual who is suspected of exerting undue influence, whether there was a relationship of influence between this individual and the testator, and the circumstances under which the will was made. The burden will also be placed on the persons upholding the will to prove it was made freely and consciously.
Children making wills
In England and Wales, the age at which an individual is eligible to make a will is 18 years old, the same age as testamentary capacity. It has been recommended that this age should be reduced to 16 years old and that the court also has the power to authorise a child that is under 16 to make a will. It has been recommended that the test set out in the MCA for testamentary capacity should be adopted.
Concerns were raised that children may be vulnerable to undue influence, but the committee generally were of the view that whilst this is a risk it alone should not prevent the recommendation that the age should be reduced to 16 to make a will.
Revocation by Marriage: Protecting against predatory unions
The proposed abolition of automatic will revocation upon marriage is designed to protect vulnerable individuals from “predatory marriages”. However, it introduces new risks. If a testator fails to update their will post-marriage, surviving spouses and civil partners may resort to claims under the Inheritance (Provision for Family and Dependants) Act 1975 (“the 1975 Act”), especially in blended families or second marriages. The report highlighted that currently with the revocation of a will upon marriage or civil partnership, the intestacy rules would apply and as such favouring spouses and civil partners over other beneficiaries. With the current proposal, whilst spouses and civil partners are not automatically favoured under the intestacy rules, they remain protected by being within a class of those that can bring a claim under the 1975 Act.
Rectification of a will
Unfortunately, the courts are currently limited in their powers to correct mistakes such as drafting errors in a will. The report recommends that courts should be able to correct wills where there is clearly a failure to reflect what was intended by the testator.
Electronic wills
It has been recommended that electronic wills should be permitted. This was considered in an earlier consultation in 2017 where it was provisionally concluded electronic wills should not be permitted. However, since then and owing significantly to the COVID-19 pandemic, there has been more of an acceptance that electronic wills should be permitted. It also assists that there are significant advancements in technology over the recent years.
Formality requirements
The current law sets out certain requirements for a will to be valid. Unfortunately, however, with the strict rules regarding the signing of wills by testators and the requirements of witnesses, the recommendation is that even where all the formality requirements have not been fully met, the courts should still have the power to validate wills where the testator’s wishes are clear (in appropriate cases). This would ensure that wills are not deemed invalid due to a technical error which is the current position and estates having to be administered in accordance with intestacy rules.
Conclusion
These reforms signal a clear intent to provide the much-needed modernisation of private client law; this could be the biggest reform in over 150 years. The intention is to make will-making easier and most importantly to reflect modern life.
For contentious probate practitioners, this could mean potentially more probate disputes due to the lowering of thresholds and allowing for broader judicial discretion.
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