Wills Act reform: What you need to know

Why is the Wills Act being reformed?

The current Wills law, whilst having had some amendments since its inception, is largely the Act put on the statute books 188 years ago. While it has served its purpose well, the law has become outdated in parts and advocates for change say that it does not reflect modern societal changes and technological advancements.

Why does it matter now?

Firstly, the demographic landscape has changed significantly since 1837. People are living longer, and issues such as mental capacity have become more prevalent and are better understood. Another change, which we see as positive, is that parties claiming undue influence – the legal framwork for Wills brought about by coercion – have faced a significantly uphill battle. As solicitors brace for the inevitable influx of ‘lockdown era Wills’ that may have been brought about by undue influence suffered by isolated and elderly family members, it makes sense that the law should recognise the need to ‘even up the playing field’. For better or worse, advancements to technology have made possible the making and virtual storing of electronic Wills (though it remains to be seen how this would work in practice).

Key changes proposed

The Report proposes several key changes to modernise Wills law, including:

• Capacity: The current test for determining mental capacity to make a Will is based on the 1870 case of Banks v Goodfellow. The report recommends replacing this with the test found in the Mental Capacity Act 2005, which has the benefit of 21^st century understanding of mental capacity. This is also reflected in the language used in the Mental Capacity Act, as opposed to Banks v Goodfellow:

• Undue influence: The burden of proof for undue influence in will-making is objectively high – albeit remains the balance of probabilities. Recent cases show how the Courts have wrestled with this. The report suggests introducing a presumption of undue influence in certain circumstances, making it easier to challenge Wills that may have been made under coercion.
• Revocation of Wills: Under the current law, marriage or civil partnership automatically revokes an existing Will unless it was made in contemplation of that specific marriage or partnership. The report recommends abolishing this rule to prevent issues such as predatory marriages (which has a lower mental capacity requirement than that which is required to make a Will), where vulnerable and usually elderly individuals are coerced into marriage to exploit their assets.
• Age of Testamentary Capacity: The report proposes lowering the age at which individuals can make a Will from 18 to 16, aligning it with other legal rights and responsibilities that people have at this age.

• Formalities: The report suggests that courts should have the power to dispense with the need for strict compliance with the formal requirements to make a Will if it is clear that the document (although arguably, one can push the recommended change so far as to question whether it actually needs to be a document) reflects the intentions of the person making the Will.
• Electronic Wills: The introduction of electronic Wills is recommended, with appropriate safeguards to prevent fraud and ensure the integrity of the Will-making and storing process.

What do the reforms mean for existing Wills?

The proposed reforms aim to modernise the law without undermining the validity of existing Wills. Wills made under the current law will remain valid, but the new rules will change and impact Wills made in some circumstances moving forward. The changes will also have a significant impact on disputes in this area of law.

For a more in-depth look at the changes, see our immediate reaction to the Law Commission’s Report here: The Law Commission’s Report ‘Modernising Wills Law’ through the eyes of a Disputed Wills, Inheritance and Trusts Solicitor

Get in touch with our experts

The proposed reforms mark a pivotal shift in the way Wills are made, interpreted, and challenged. As the legal framework evolves to better reflect modern society, it is essential for practitioners and individuals alike to understand the implications. In the coming weeks, we will continue to examine these changes in detail and consider their potential impact on estate planning and contentious probate matters.

If you have questions about how these reforms could affect your Will or a potential dispute, please don’t hesitate to get in touch with our team on 01202 525333.