A first look at the recommendations in the Law Commission report 2025 and the potential impact on litigation involving estates

Why is reform required? 

The law governing wills in England and Wales has not been comprehensively reviewed for over 200 years. Since the enactment of the Wills Act in 1837, society has changed dramatically: people are living longer, families are more diverse than ever, and technology has transformed everyday life. The current legal framework has become increasingly outdated and unfit to serve the needs of modern individuals making wills. 

Longer lifespans increase the potential for ill health and a decline in mental acuity associated with old age. This makes it all the more important to have a process of making will that is accessible, secure and records the genuine intentions of the testator. 

The proposed reforms in the Law Commission's report aim to modernise the law of wills, making it more relevant, reliable and fit for purpose. They will also help legal practitioners implement an individual’s intentions more effectively. 

In this article, we set out the proposed recommendations of the reform, and explore matters within the Law Commission report that could affect those involved in estate litigation.

Objectives of the reform

The proposed recommendations are guided by three core objectives:

1. Supporting testamentary freedom – ensuring individuals can effectively express their wishes.
2. Protecting testators – particularly focusing on the elderly and vulnerable, from undue influence, coercion and fraud.
3. Clarifying the law – making it more understandable for individuals and legal professionals. 

We will now touch on matters within the report that could affect those involved in estate litigation.

Clarification on testamentary capacity

The Law Commission report recommends that the test for testamentary capacity should be in line with the Mental Capacity Act 2005. The current test for testamentary capacity is the well known Banks v Goodfellow test:

“It is essential … that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

The proposed change would bring the test for testamentary capacity in line with the capacity test for other decisions under the Mental Capacity Act 2005. The statutory presumption of capacity in the Mental Capacity Act 2005 would apply in the testamentary context. The report recommends that the Mental Capacity Act Code of Practice should reference and explain the elements of the Banks v Goodfellow test in its guidance on testamentary capacity. 

Courts could infer undue influence (a presumption)

Currently, if someone wants to challenge a will on the basis that the testator has been unduly influenced, they have the burden of proving it. There is no presumption of undue influence in relation to the making of wills so in practice it's extremely difficult to prove. 

As a result, in order to provide better protection to testators (and particularly to vulnerable testators), the Law Commission report recommends that it should be possible for the courts to infer that a will was brought about by undue influence, where there is evidence which provides reasonable grounds to suspect it, for example the conduct of the person alleged to have exerted undue influence. This will not change the ultimate test for undue influence in respect of wills – but the burden of proof could be reversed. 

Knowledge and approval 

The Law Commission report recommends that the requirement that the testator has 'knowledge and approval' of the contents of their will should require that the testator understands that they were making a will, and the content and effect of their will. This would be codified in the new proposed Wills Act. 

Inheritance (Provision for Family and Dependants) Act 1975

As it stands, because mutual wills are irrevocable from the moment they are made and create a trust over the property of upon the death of the first to die, a potential claimant in an Inheritance (Provision for Family and Dependants) Act 1975 case cannot claim against those assets because the surviving spouse does not have the power to change the disposition of the assets in the trust. 

The Law Commission report recommends that the 1975 act should be amended to provide that property that is subject to a mutual wills arrangement be treated as part of the deceased’s net estate so that such property will fall within the scope of the deceased’s property out of which an order for financial provision can be made. 

Other takeaway points

1. The court could have the power to dispense with the formality requirements to make a valid will. This power would allow the court to make a ruling that a document or record is a valid will where the court is satisfied that the document reflects the person’s settled testamentary intentions.
2. Reducing the minimum age at which a person can make a will from 18 to 16.
3. Abolishing the existing rule that a person’s will is automatically revoked when they marry or enter a civil partnership.

When could recommendations be implemented?

It's now for the government to consider and respond to the Law Commission’s recommendations. An interim response is required within six months of publication of the report and a full response within a year.

If you would like to seek further information about the changes mention in this article or in the report then please get in touch with our disputed wills and trusts team today.