This month, the Law Commission of England and Wales published a report, ‘Modernising Wills Law’ with various recommendations to the laws of Estates and Trusts.

The Law Commission’s project on wills law began in 2016, with a public consultation period following the publication of the Consultation Paper, “Making a Will,” in July 2017, which closed in November 2017. A Supplementary Consultation Paper was published in October 2023 to re-consult on electronic wills and the rule that marriage or civil partnership revokes an existing will, due to developments since the initial consultation.

The final Report and draft Bill were published on 16 May 2025. The Report considers perspectives from other common law jurisdictions, most notably Canada, Australia, New Zealand and the United States. In this regard the Report cites WEL Partner’s Kim Whaley and her work regarding predatory marriages.

Key Recommendations

The following are a summary of the key recommendations made by the Law Commission:

Abolishing the Rule that Marriage Revokes a Will

The Commission recommends abolishing the rule that a marriage or civil partnership revokes a will, which often leads to unintentional intestacies and can be exploited in predatory marriages. The Commission sees this rule as outdated and contrary to testamentary freedom, as many are unaware of its existence and do not intend for their wills to be revoked. Abolishing the rule would protect vulnerable individuals and better reflect contemporary social contexts, where marriage may not significantly alter existing testamentary plans.

It is of note that WEL Partner’s own Kim Whaley is cited in the Law Commission’s Report no less than seven times where it concerned predatory marriages and the revocation of wills on marriage.

Dispensing Power

The Law Commission recommends introducing a court power to dispense with the formality requirements for making a valid will. The Report notes that the current strictness of the law in England and Wales contrasts with other jurisdictions where a formally invalid will can still be given effect under certain circumstances. This includes Ontario, which revised the Succession Law Reform Act,^[1] through section 21.1(1) which permits a court to validate a Will that would have failed because it did not comply with statutory formalities.

The Commission believes that when a person’s testamentary intentions are clear, there should be a mechanism to give effect to those intentions, supporting the principle of testamentary freedom. This would ensure that deficiencies in formal compliance do not prevent a testator’s wishes from being realized, particularly in cases of homemade wills, which are more prone to non-compliance.

Lowering age to make a Will

The Commission has recommended that the requisite age to make a valid will is reduced from 18 to 16, aligning with England and Wales’s Mental Capacity Act 2005. This change addresses the current rule that invalidates wills made by individuals under 18, which can lead to issues in exceptional cases, such as when a terminally ill child wishes to exclude a non-involved parent from inheriting.

Rectification of Wills

This recommendation concerning rectification would expand the court’s power to rectify wills to better reflect the testator’s intentions. Currently, rectification of wills in England and Wales is limited to correcting clerical errors or misunderstandings by the drafter, but not intentional drafting errors by the lawyer. The recommendation seeks to allow rectification where the drafter failed to understand the meaning or direct effect of the language used, ensuring the will aligns with the testator’s true intentions.

Undue Influence

A recommendation of the Commission is that courts should be able to infer undue in will-making when there is reasonable suspicion, shifting the evidential burden to the alleged influencer to prove the will’s validity.

Gifts to Witnesses and Cohabitants

The Commission recommends extending the rule that invalidates gifts to witnesses or their spouses to include cohabitants of the testator and those who sign on the testator’s behalf. According to the Report, this would address inconsistencies in the current law and reflects modern societal norms, where cohabitation is common without marriage.

Electronic Wills

The Commission recommends making provision for electronic wills, recognizing the increasing acceptance of electronic documents and execution in England and Wales. This change aims to ‘future-proof’ the law and support testamentary freedom for future generations. Electronic wills must meet an additional formality requirement for security, ensuring they provide the same level of protection against fraud and undue influence as paper wills. The recommendation would also allow for remote witnessing via video calls

The Law Commission’s Report, as well as the draft Bill, can be accessed online here.

[1] RSO 1990, c. S. 26.