Modernising Wills: key changes proposed in the Draft Wills Bill
The Law Commission has published its long-awaited report and Draft Wills Bill, proposing the most significant reforms to Wills law in nearly 200 years.
The Law Commission has published its long-awaited report and draft Wills Bill, setting out the most significant proposed reforms to Wills law in nearly 200 years. Designed to modernise the outdated Wills Act 1837, the reforms aim to bring testamentary law in line with today’s societal and technological realities.
Here’s a summary of the key proposals and what they could mean for you.
What’s changing in the draft Wills Bill?
A new Wills Act
The current Wills Act 1837 would be repealed and replaced with updated language and modernised provisions, bringing clarity and accessibility to this area of law.
Wills for young people
Under the proposals, 16- and 17-year-olds would be allowed to make a Will in the same way as adults. Courts could also authorise children under 16 to make wills if deemed competent, a reform particularly relevant for terminally ill children.
Electronic wills and remote witnessing
Testators (those making Wills) would be able to create Wills digitally, provided a reliable system ensures the Will's authenticity and integrity. Witnessing via video conferencing would also be permitted.
Dispensing Power for Formalities
Courts would have discretion to validate Wills that do not meet all formal requirements, provided the document clearly reflects the testator’s intentions.
A modern Capacity test
The longstanding Banks v Goodfellow, test (stemming from a decision of the court in 1870) would be replaced by the statutory test under the Mental Capacity Act 2005. This aligns Wills with modern capacity assessments but raises questions about its practical application.
Marriage no longer revokes a Will
Marriage or civil partnership would no longer automatically revoke a Will, addressing concerns about predatory marriages and the evolving nature of modern relationships.
Wider rules on Witness gifts
The prohibition on gifts to attesting witnesses would be extended to include their cohabitants and those signing on behalf of the testator. However, courts could allow such gifts where it is "just and reasonable."
Presumption of Undue Influence
In cases where there is evidence of coercion, courts could presume undue influence, placing the burden of proof to the person accused. This change aims to better protect vulnerable individuals while preserving the ultimate test for undue influence.
Easier rectification of Wills
Courts would have greater powers to correct mistakes in a Will, including correcting deliberate but mistaken choices of language, offering greater flexibility in addressing errors.
Changes to Ademption rules
Gifts of property would no longer fail if the property were sold before death, provided the sale was under a contract or by an attorney acting under a Lasting Power of Attorney. This ensures the intended beneficiary benefits from the proceeds of the sale.
What this could mean for you
If enacted, these reforms, could significantly reshape how Wills are prepared, executed, and challenged. Key benefits include:
- Greater flexibility and accessibility: The introduction of electronic Wills and the lower age limits would make the process more inclusive and adaptable to modern needs.
- More protection for the vulnerable: New rules around undue influence and predatory marriages aim to safeguard vulnerable individuals.
- Fewer disputes: The wider powers of the court and extended rectification provisions could reduce the chance of costly legal challenges over errors or formalities.
Looking ahead
The draft Wills Bill is a bold attempt to bring testamentary law into the 21st century. By addressing long-standing issues and embracing modern technology, the proposed changes aim to make Will-making more accessible, secure, and reflective of individual intentions.
We will keep you updated on whether the proposals become law. In the meantime, whether you are considering updating your Will or planning your estate for the first time, these reforms highlight the importance of seeking expert legal advice to ensure your wishes are clearly expressed and protected.
For more information or advice, please contact Roderick Smith in our Wills team.