Reconceptualizing the Law of Wills: An Analysis of the Law Commission’s Reform Proposals
MENARA ASPEN ADVISORY LTD - AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION
Author Elaine Obika
Date December 2025
INTRODUCTION
The Law Commission’s proposals mark a rare moment of genuine transformation in succession law. For the first time in decades, the framework governing wills is being re‑examined not only for technical coherence but for its ability to reflect modern lives, relationships and vulnerabilities. This analysis explores the Commission’s recommendations through the lens of their deeper jurisprudential tensions — between autonomy and protection, formality and flexibility, tradition and technological change — and considers what a truly contemporary law of wills might require.
The Law Commission’s 2017 proposals for reforming the law of wills represent one of the most significant modernisations of succession law in decades. While the current framework has served as the backbone of testamentary practice since the nineteenth century, it has struggled to keep pace with technological change, evolving family structures, and contemporary understandings of autonomy and vulnerability. The Commission’s recommendations attempt to reconcile these tensions by expanding accessibility, strengthening protection, and modernising formalities. This essay examines the key proposals and the jurisprudential questions they raise.
1. Electronic Wills: Technology Meets Testamentary Formality
The proposal to recognise electronic wills marks a profound shift in the law’s relationship with technology. The current insistence on paper, ink, and physical signatures reflects a historical concern with fraud and evidential certainty. Yet digital life increasingly demands digital death planning. The challenge lies in balancing accessibility with reliability: can electronic systems adequately safeguard intention, or do they open the door to manipulation? The Commission’s approach suggests cautious optimism, but the tension between innovation and evidential security remains unresolved.
2. Dispensing Powers: Intention Over Formality
The introduction of a dispensing power would allow courts to validate wills that fail to meet formal requirements where testamentary intention is clear. This aligns English law with jurisdictions such as Australia and Canada, which already adopt a more flexible approach. The reform raises a fundamental jurisprudential question: how far should the law prioritise intention over formality? While flexibility promotes fairness, it also increases the evidential burden on courts and risks inconsistent outcomes. The proposal reflects a shift toward a more purposive, less rigid conception of testamentary freedom.
3. Testamentary Capacity: Replacing Banks v Goodfellow
Replacing the common law test in Banks v Goodfellow with the Mental Capacity Act 2005 standard represents a modernisation grounded in clinical understanding. The MCA framework is more nuanced, particularly in cases involving neurodivergence or fluctuating capacity. Yet this reform introduces complexity: medicalised assessments may be more accurate, but they also risk over‑professionalising a process historically grounded in lay judgment. The tension between autonomy and clinical scrutiny is central to this proposal.
4. Lowering the Testamentary Age to 16
Lowering the minimum age for making a will from 18 to 16 expands access for younger testators, particularly those with assets or responsibilities. The reform acknowledges that maturity does not always correlate neatly with age. Yet it raises questions about cognitive readiness and the extent to which the law should recognise youthful autonomy in matters of post‑death planning. The proposal reflects a broader trend toward empowering young people while still grappling with the limits of legal capacity.
5. Rectification: Correcting Errors to Uphold Intention
The proposal to strengthen rectification powers allows courts to correct clerical or drafting errors that distort a testator’s intention. This enhances fairness and aligns with the principle that form should not defeat substance. However, it also expands judicial discretion, raising concerns about the boundary between interpretation and rewriting. The reform underscores the ongoing struggle to balance certainty with justice.
6. Gifts to Cohabiting Witnesses
Removing the automatic invalidation of gifts to cohabiting witnesses reflects modern relationship patterns and promotes fairness. The current rule, rooted in Victorian suspicion of undue influence, disproportionately affects unmarried couples. Yet the reform must still grapple with the risk of coercion. The challenge is to protect vulnerable testators without imposing outdated moral assumptions on contemporary relationships.
7. Revocation by Marriage or Civil Partnership
Abolishing automatic revocation upon marriage or civil partnership marks a decisive break from tradition. Historically, marriage was seen as a transformative event that reset testamentary intention. Today, with diverse family structures and rising rates of remarriage, automatic revocation can produce unintended and unjust outcomes. The reform prioritises autonomy over paternalistic protection, recognising that love should not erase legacy unless expressly intended.
8. Statutory Guidance on Undue Influence
Clarifying the evidential threshold for undue influence addresses one of the most opaque areas of succession law. The current test is notoriously difficult to satisfy, leaving many vulnerable individuals unprotected. Yet strengthening the doctrine risks undermining autonomy by inviting challenges based on family conflict rather than genuine coercion. The proposal attempts to strike a delicate balance between safeguarding the vulnerable and respecting testamentary freedom.
9. Simplifying Signing and Witnessing Rules
Modernising execution formalities aims to reduce technical invalidity while preserving safeguards against fraud. The challenge is to maintain reliability without imposing unnecessary rigidity. Simplification reflects a recognition that the law should facilitate, not obstruct, the expression of testamentary intention.
10. Support for Will Writing and Access to Justice
Encouraging accessible, affordable will‑writing services addresses a longstanding barrier to effective estate planning. Yet increased access must not come at the cost of quality. The risk of exploitation or poorly drafted wills remains significant, particularly for vulnerable individuals. The reform highlights the tension between democratising legal processes and maintaining professional standards.
11. Guardianship Appointments
Clarifying the rules for appointing guardians in wills strengthens parental autonomy while ensuring child welfare remains paramount. The reform reflects the need for clearer statutory guidance in an area where emotional, legal, and practical considerations intersect.
12. Mutual Wills and Binding Promises
Addressing the enforceability of mutual wills seeks to resolve doctrinal uncertainty surrounding promises that bind beyond death. The reform raises philosophical questions about the extent to which love, loyalty, or contract should constrain testamentary freedom.
13. Donationes Mortis Causa
Reviewing or abolishing the doctrine of donatio mortis causa acknowledges its status as a historical relic. While the doctrine serves a narrow purpose, its informality sits uneasily within a modern legal system that values clarity and certainty. The reform invites reflection on whether tradition should yield to coherence.
14. Ademption and Disappearing Assets
Clarifying the treatment of assets disposed of before death addresses a common source of confusion. As property becomes increasingly fluid — digital assets, investments, changing portfolios — the law must adapt to ensure that intention is not defeated by the mechanics of asset transformation.
15. Privileged and Holograph Wills
Reviewing privileged wills and considering the validity of holograph wills reflects a broader question: should the law continue to make exceptions for danger, informality, or handwriting alone? These proposals test the boundaries between autonomy and evidential reliability.
Conclusion
The Law Commission’s proposals collectively represent a shift toward a more flexible, modern, and intention‑focused law of wills. They seek to reconcile autonomy with protection, simplicity with certainty, and tradition with technological and social change. Yet each reform carries its own jurisprudential tension, revealing the delicate balance at the heart of succession law: the need to honour the wishes of the dead while safeguarding the living.
SOURCES
1] Law Commission, Modernising Wills Law (Law Com No 423, 2025) p 287, 10.3.
[2] Gillick v West Norfolk and Wisbech AHA [1986] AC 115 (HL).
[3] Chris Rattigan-Smith ‘An Overview of the Law Commissions Final Report – Part Four’ 12th June 2025 Will Pack < https://www.willpack.co.uk/an-overview-of-the-law-commissions-final-report-on-wills-part-four/ > accessed 29th October 2025.
[4] NSPCC Learning ‘Gillick Competence and Fraser Guidelines’ 5th August 2022 NSPCC < https://learning.nspcc.org.uk/child-protection-system/gillick-competence-fraser-guidelines#skip-to-content > accessed 29th October 2025.
[5] NSPCC Learning ‘Gillick Competence and Fraser Guidelines’ 5th August 2022 NSPCC < https://learning.nspcc.org.uk/child-protection-system/gillick-competence-fraser-guidelines#skip-to-content > accessed 29th October 2025.
[6] Alex Ruck Keene Mental Capacity Law and Policy ‘Gillick Is Not a Universal Test – An Important Clarification from the Court of Appeal’ 30th July 2025 < https://www.mentalcapacitylawandpolicy.org.uk/gillick-is-not-a-universal-test-an-important-clarification-from-the-court-of-appeal/ > accessed 29th October 2025.
[7] Banks v Goodfellow (1870) LR 5 QB 549.
[8] Mental Capacity Act 2005 ss 2 - 3.
[9] Mental Capacity Act 2005.
[10] Henry Pearce and Cheryl Buck ‘Balancing the Autonomy and Protection of Children: Competency Challenges in Data Protection Law’ (2024) Vol 23 Information and Communications Technology Law, 177 <https://www.tandfonline.com/doi/full/10.1080/13600834.2024.2320978?scroll=top&needAccess=true#abstract > accessed 29th October 2025.
[11] Amelia Summerton ‘Can Children Make Wills ?A Look at Proposed Reforms to Wills Law’ 7th August 2025 Society of Will Writers < https://www.willwriters.com/blog/can-children-make-wills/ > accessed 29th October 2025.
MENARA ASPEN ADVISORY LTD - AUTHORED WORK NOT FOR REPRODUCTION OR DISTRIBUTION
