Modernising the law of wills: The Law Commission Report 2025 and what it means for you

One of the headline issues in the report is the potential introduction of electronic wills—wills created, signed, and stored digitally rather than on paper. The Commission sees the benefit of making the will-making process more accessible, particularly for individuals with mobility issues or in urgent medical situations. A will would still need to be signed in the presence of two witnesses, but for individuals who may travel frequently, or have international ties, electronic wills could provide added convenience.

However, there are also clear risks, especially around authenticity, security, and undue influence. The Law Commission has produced a draft bill which would take into account electronic wills as well as ‘traditional’ paper wills. It does not specify how such electronic wills should be made, but suggests that the government should be given the power to introduce them in future—once appropriate safeguards are in place.

This approach would allow the law to evolve with technology, while protecting core principles like testamentary freedom and fraud prevention. As it stands, electronic wills are not yet legally valid in England and Wales, but the groundwork is being laid for their eventual use. Clients who operate digitally or hold significant digital assets should watch this space carefully and in the meantime, ensure they execute a valid will, according to the current law.

Another key area of reform is the question of mental capacity—whether a person is mentally capable of making a valid will. At present, we rely on a very old legal test from the case of Banks v Goodfellow 1870, which considers whether someone understands the nature and effects of a will, the extent of their property, and the potential claims of others. The Law Commission recommends moving to the more modern and widely applied test found in the Mental Capacity Act 2005, which is already used in other areas of law and healthcare. For those with ageing family members or who may face capacity-related challenges themselves in the future, this change could provide clearer and more consistent guidance.

That said, shifting to the Mental Capacity Act framework would involve significant changes in practice. Many professionals are deeply familiar with the current test, and applying a new standard would require education, judicial interpretation, and a period of adjustment. It could also increase the risk of disputes if assessments of capacity become inconsistent. Nonetheless, this reform reflects a growing awareness of the need to align the law with modern understanding of cognitive health—a point especially relevant for families concerned with long-term estate planning.

The Commission also examined whether minors should be allowed to make wills. Under current law, only those aged 18 and over can do so, unless they are serving in the armed forces. The proposal is to reduce that to 16, citing the example of other jurisdictions which allow this. In addition, the report proposes that the courts be empowered to authorise a child under the age of 16 to make a will, though this should apply in exceptional circumstances only. For UHNW families, this could be relevant in the context of generational wealth planning—particularly in cases involving young individuals facing life-threatening illness or complex personal circumstances. It acknowledges that maturity does not always correspond neatly with age.

There is currently also a rather unusual rule, which is the rule that marriage revokes a will.  A will is automatically revoked if the testator gets married or forms a civil partnership, unless that is expressly anticipated in the will. Ignorance of this law leads to unexpected intestacies, and there is also a fear that this rule can be exploited by predatory marriages. The report therefore proposes the abolition of this rule, to reflect more accurately what they think people would want or expect, and as an update from the Victorian period from which the rule dates.

These proposed reforms, while not yet law, signal the direction in which will-making in England and Wales is likely to evolve. For individuals and families with substantial and often complex estates, it is vital that wills are not only legally valid under current rules, but also prepared with a clear understanding of the proposed changes in this area.

As ever, having the right legal practitioner is crucial. At Russell-Cooke, we provide tailored advice to ensure your wishes are clearly documented, your estate is protected, and your loved ones have certainty. If you would like to review your existing will or discuss how these reforms may affect your future planning, please do not hesitate to get in touch.