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Modernising Wills: Is This a New Era for Contentious Probate Practitioners in England and Wales?

Posted on: October 31st, 2025 by Ella Darnell

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.

For more information on our Private Wealth and Succession Planning services, click here.

Can You Exclude an Adult Child From Your Will? Howe v Howe and the Inheritance Act 1975

Posted on: October 24th, 2025 by Ella Darnell

The case of Howe -v- Howe saw an adult child bring a claim pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”) against her late father’s estate.

Background

Mr Roger Howe (“the Deceased”), died on 27th March 2020, he had made a will dated 4th July 2017 in which he had entirely cut out his only daughter Jenna Howe. The Deceased had made clear the reasons for excluding his daughter, he described her as “lazy” “lying” and “useless”. Instead, he left his estate to his mother, sister and two nephews.

Miss Howe initially issued a claim to have the will set aside on the basis that the signature of one of the attesting witnesses had been forged. Unfortunately for Miss Howe, this claim failed due to the death of the witness and as such she withdrew her claim and it was ordered that she would pay towards the executor’s costs, the sum of £42,000.

Miss Howe then pursed a claim under the 1975 Act for reasonable financial provision for her maintenance as she had been excluded by her father from his will, she was claiming the sum of £450,000.

Miss Howe’s position was that it was owing to her father’s poor treatment of her when she was a child/teenager which is what directly contributed towards her health issues which made her unable to work and which now gave her the need to bring a claim under the 1975 Act for reasonable financial provision for her maintenance.

Judgement

The court found that despite the lengthy estrangement, that Miss Howe’s health needs were a significant factor for making a financial provision for her from the estate. Miss Howe’s health issues prevented her from working and were because of the treatment she received from the Deceased during her upbringing.

The court also ordered the estate to pay for Miss Howe’s white goods, car, income shortfall for 10 years, provision for her health needs which included therapy and new breast implants (she had claimed that they were essential to improve her confidence), and the costs order in respect of the initial claim Miss Howe brought to set aside the will.

In total Miss Howe was awarded £125,000 which was to be held on a discretionary trust so not to interfere with her entitlement to state benefits, it would also prevent her from spending the money unwisely.

Conclusion

There has clearly been a shift in the way in which courts are dealing with claims under the 1975 Act for reasonable financial provision from estranged adult children. This is certainly a landmark case which demonstrates what is a very complex balance that courts must find in being able to respect the wishes of the deceased but also ensuring that vulnerable claimants receive what would be considered an adequate financial provision. Whilst previously a claim by an estranged adult child may have appeared to be prima facie weak, this is clearly not the case.

This is yet another example of that when preparing your will, you need to take into consideration that adult children can successfully challenge your decision to exclude them entirely from your estate if they can provide a legitimate need.

For more information on our Private Wealth and Succession Planning services, click here.

Kaur -v- Estate of Karnail Singh & Others [2023] EWHC

Posted on: October 14th, 2025 by Ella Darnell

This was an interesting case which attracted a lot of media attention. Whilst it was not an unusual case, many called the actions of the deceased an injustice which required the court to put right.

Background

Mr Karnail Singh (the “Deceased”) died on 21st August 2021. He made a will dated 25th June 2005 in which he left his entire estate to two of his 6 surviving children, both were sons.

The Deceased made no provisions for his four daughters nor his wife. The Deceased’s intention was to leave his estate to the “male line” of his family.

The Deceased married his wife Harbans Kaur in 1955, a long marriage spanning 66 years, they had 7 children together although only six survived the Deceased.

The Deceased and his wife both worked in the family clothing business although she did not have a direct stake within it and nor did she receive a salary. She remained fully dependent on the Deceased, and he met all her financial needs throughout their long marriage.

Given that the Deceased left no provision in his will for his wife, she issued a claim under the Inheritance (Provision for Family and Dependant’s) Act 1975 (the “1975 Act”), seeking an order that she should receive half of the estate, whatever the value may be. She made it clear that her intention was to be able to purchase a property for herself which was close to her daughter, and she was unable to do this given her only income was £12,000pa from state benefits and she had very modest assets.

Judgement

Mr Justice Peel found that the Deceased’s estate did not provide reasonable financial provision for the claimant and as such she was awarded 50% of the net value of the Deceased’s estate, she would also receive £20,000 forthwith on account of the final distribution due to her.

Further, the claimant’s costs were to be paid out of the gross value of the estate before any distribution was made to her, therefore her costs were treated as an administration expense.

Mr Justice Peel commented that:

“It is hard to see how any other conclusion can be reached. After a marriage of 66 years, to which she made a full and equal contribution, and during which all the assets accrued, she is left with next to nothing.”

It is worth noting that in this case there was discussion over what the value of the estate was. The claimant’s claim was 50% of the estate and this is what was awarded. The court did not specify exactly what the amount was as it was clear that even at the lower end of the values, it would still be sufficient to provide for the claimant.

Conclusion

The judgement did not necessarily come as surprise to many practitioners, however the key takeaway from this case must be that whilst testators do enjoy the freedom to leave their estate as they wish, the courts are looking at cases with the view to stand against injustice and equality.

Patel v Patel [2025], a reminder on how to avoid a dispute over funeral arrangements

Posted on: October 10th, 2025 by Ella Darnell

The case of Patel v Patel [2025] EWHC 560 (Ch) explores an issue which rarely tends to find its way before a Judge but one which is nonetheless an important issue to consider, this being what happens when executors cannot agree on funeral arrangements and who can make the final decision.

This case involved a dispute between the deceased’s son and daughter over the funeral arrangements for their late father. Both were been named as executors in the deceased’s will.

Background

The deceased was born in India but moved to England in 1954 with his wife. This is also where their children were born and raised. The deceased and his wife were devout Hindus.

The deceased’s wife died first, on 24th February 2024, and in accordance with Hindu traditions her body was cremated (she had clearly expressed in her will that she wished to be cremated), and her ashes were scattered in England.

The deceased died on 30th December 2024, he had made a will dated 22 December 1993 however his will did not provide any directions as to his funeral arrangements.  Following his death, the executors were at war, his son, the claimant in this case, maintained that his father had told him after his mother had died, that he wanted the same funeral arrangements as his wife, this being cremated and his ashes scattered in England. However, the deceased’s daughter, the defendant in this case, presented a different position to the court, she stated that her father had told her in the months leading up to his death that he wished to die in India and in the event where he died in England then he wanted his body to be taken to India and buried. 

The Law

HHJ Matthews stated that the law was clear in respect of the rights of a personal representative to the possession of the deceased’s body for the purposes of a funeral and referred to the case of  Buchanan v Milton [1999] 2 FLR 844,  where Hale J said:

“There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 Ch 659 ; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 Ch 468 at 472; Dobson v North Tyneside Health Authority [1997] 1 WLR 596 at 600 obiter), even before there has been a grant of Probate. Where there is no executor that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson).”

HHJ Matthews then had to consider the way in which the Court was able to intervene, and he looked at:

  1. 116 Senior Courts Act 1981 which provides that:

“(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who but for this section would in accordance with probate rules have been entitled to the grant the court may in its discretion appoint as administrator such person as it thinks expedient.

(2)  Any grant of administration under this section may be limited in any way the court thinks fit”.

However, the claimant and the defendant had been both named as executors jointly and the decision to make in respect of the funeral agreements was one for them to make together but they were not able to agree.

  1. The courts inherent jurisdiction

HHJ Matthews considered the case of Oldham Metropolitan Borough Council v Makin [2018] Ch 543  where Sir Geoffrey Vos, stated:

“80. In my judgment, the court does have an inherent jurisdiction to direct how the body of a deceased person should be disposed of. The court will normally, as I have said, be deciding between the competing wishes of different sets of relatives, and will only need to decide who should be responsible for disposal rather than what method of disposal should be employed. I cannot see, however, why the court’s inherent jurisdiction over estates is not sufficiently extensive to allow it, in a proper case, to give directions as to the method by which a deceased’s body should be disposed of. In my view, it is. Moreover, I am, for the reasons I have given in relation to section 116, prepared to exercise that jurisdiction in this case”.

HHJ Matthews relied on this authority to use the Courts Inherent jurisdiction to provide directions on the method of disposal of the deceased’s body.

Judgement

In his judgment, HHJ Matthews found that it had been difficult to determine the wishes of the deceased, and he found both the claimant and defendant to be reliable in their evidence. “[B]oth the claimant and the first defendant were telling the truth as they believed it to be, and neither was attempting to mislead the court”.

He noted that the family were all in agreement with the views of the claimant and it was only the defendant who had a different view, and this was based on the “perception of what the deceased wished for himself, and not on what she herself wishes for him.” It was the defendant’s case that she was not advocating her personal view on this.

In reaching a conclusion, HHJ Matthews considered a number of factors including the place where the deceased was most closely connected. He found this to be England as the deceased had lived here for 70 years (the majority of his life) with his wife, and it was where he raised his family. In comparison the deceased had not been back to India in over 20 years; and only extended family remained in India. Whilst England was not his place of birth it was his chosen home. Further, his wife’s ashes had been scatted in England.

He also considered the costs involved in transporting the deceased’s body to India would be significantly more, there would be the legal and administrative costs involved for the international transportation of human remains too. There would also be the costs for those family members who would have to travel to and from India.

In terms of timeframes, there had already been a period of three months since the deceased’s death where the body had remained undisposed of, to transport it to India would cause further delays.

HHJ Matthews when taking these various factors and the evidence into account, was of the view that the “right decision is to direct that the body of the deceased be cremated and his ashes scattered here in England, in accordance with the appropriate Hindu rites. In my judgment there is no sufficient justification for directing a burial in India on the facts of this case.”

He also added that he placed greater weight on the wishes of the wider family, he said that their needs were the “needs of the living”, they would be the ones that would be attending the funeral and the ones that would be grieving, and the funeral would give them both comfort and closure. He was of the view that the deceased’s views on his funeral arrangements were not legally enforceable but rather one of several factors which he was considering. The reason why it was not enforceable and only just a factor was because the deceased had not included directions in his will as to the disposal of his body.

Costs

HHJ Matthews was then asked to consider the issue of costs. Whilst costs are generally in the court’s discretion, it is common practice for the losing party to pay the winning parties costs, therefore the claimant sought an order the defendant should be ordered to pay his costs.

When considering this issue, it was HHJ Matthews view that the dispute was because of the deceased not expressly setting out in writing what his wishes were in relation to his funeral arrangements and had he done so he had no concern that the defendant would have acted in accordance with those wishes. It was on this basis that he ordered that the costs of the parties were payable from the estate.

Conclusion

This case is another helpful reminder that when you are preparing your will it is essential you set out clearly what your wishes are in respect of your funeral arrangements to avoid a situation such as this. This avoids further unnecessary anguish between the family members and could save the estate from incurring these legal costs.

HHJ highlighted that disputes such as these cause a great deal of sadness and prevent the family from moving on with their lives and coming to terms with their grief.

For more information on our Private Wealth and Succession Planning services, click here.

Lawrence Stephens Announces the Appointment of Rekha Toor as Senior Associate to Its Private Wealth team

Posted on: September 10th, 2025 by Ella Darnell

Lawrence Stephens is pleased to announce the appointment of Rekha Toor as Senior Associate to its Private Wealth team.

Rekha joins us from a specialist firm, bringing extensive experience in Wills, Trusts and Probate Disputes. She is a Full Member of the Association of Contentious Trust and Probate Specialists (ACTAPS) and ConTra – The Contentious Trusts Association, and has been recognised as a Recommended Lawyer by the Legal 500. Rekha regularly advises on high-value and complex disputes, including those with cross-border elements, and is committed to resolving matters through Alternative Dispute Resolution (ADR) wherever possible. Her appointment further strengthens our team’s capabilities and reflects our continued commitment to growth.

Head of Private Wealth and Succession Planning, Gareth Hughes said:
“I’m delighted to welcome Rekha Toor to Lawrence Stephens and our Private Wealth and succession planning team. Rekha brings a wealth of specialist knowledge and experience in contentious probate matters, which will be invaluable to our clients. Her appointment marks an exciting step in the team’s development and supports our strategic focus on expanding our expertise in this complex area of law.”

Gareth Hughes comments on wills for parents in The Guardian’s ‘The Good Life’ supplement

Posted on: March 28th, 2025 by Natasha Cox

Director and Head of Private Wealth and Succession Planning, Gareth Hughes, explains why having wills in place is crucial for parents looking to protect the interests of their children.

Gareth’s comments were published in The Guardian’s ‘The Good Life’ supplement, 8 March 2025.

“For many parents, taking steps to secure their child’s future in the event of their own death is an area of primary concern. Putting a will in place can be a daunting prospect; however, we consider it essential to protect the best interests of the child.

“A key concern is responsibility for the day-to-day care of the child. Under a will, a parent can appoint a guardian and ensure that minor children will be cared for by a person they trust with the responsibility.

“Finances also warrant careful consideration. By making a will, a parent can put appropriate structures in place so that assets are managed and used to support their children until they are of an age to manage the assets themselves.

“A will gives a parent peace of mind: that they have done everything they can to protect their children in the event of their death.”

If you would like advice on drawing up your will, please contact a member of our Private Wealth and Succession Planning team.