Modernising wills – A significant step, but work is still to be done

The Law Commission’s May 2025 report, Modernising Wills, marks a significant step towards reforming the law of wills in England and Wales. The report recommends replacing the Wills Act 1837 with a new statute that reflects contemporary values and practices.

Key proposals include giving courts a dispensing power to overlook formal will requirements where it is satisfied that the document represents the deceased’s settled testamentary intentions; laying the groundwork for recognising electronic wills; removing the rule that marriage automatically revokes a will and modernising the law on testamentary capacity.

Testamentary capacity: a long-overdue shift

One of the most welcome recommendations is the proposal to adopt the test for capacity under the Mental Capacity Act 2005 (MCA 2005) in place of the common law test from Banks v Goodfellow. Arguably, the only rational course is for the law to adopt one single test to provide clarity and consistency to what can often be a contentious area of probate.

The current two-test regime has created uncertainty for practitioners and litigants. The Banks test, with its Victorian-era language and focus on “insane delusions,” sits uneasily alongside the more modern, functional approach of the MCA 2005. However, the Law Commission has finally grappled with this issue.

For the last 17 years, the tests have been debated extensively by a number of distinguished judges. This issue was at the heart of the landmark case of Clitheroe v Bond, whereby it was argued that the MCA 2005 should apply to testamentary capacity, but the court found that it was the common law test under Banks v Goodfellow which applied: it had not been overridden by the MCA 2005.

Although the Appeal Court acknowledged the tension between the two tests, it declined to resolve the issue, citing procedural constraints and raising “significant doubt as to whether it would be possible for the court to do so even if it were so minded.” The Law Commission’s recommendation now proposes a legislative solution to a problem the courts have been unable to settle.

Adopting the MCA 2005 test would shift the burden of proof in a way that better aligns with modern understandings of mental health. Under the MCA, capacity is presumed unless proven otherwise, i.e., a person who wishes to challenge the will would need to prove that the testator lacked capacity, whereas under Banks, the burden often falls on the person wishing to prove the will that the testator had capacity. In my opinion, this change better protects autonomy and testamentary freedom.

Revocation by marriage: an unresolved vulnerability

In contrast, for many practitioners, the Commission’s proposal to remove the rule that marriage revokes a will is a less welcome proposal. The objective here is to help protect against the risk of predatory marriages — where vulnerable individuals are induced into marriage for financial gain. Change here is certainly needed, as, currently, a predatory spouse can marry a vulnerable person, thereby revoking any prior will and ensuring they inherit under the intestacy rules. This can result in the disinheritance of children or other intended beneficiaries. However, two key problems remain.

Firstly, it doesn’t solve the issue of predatory marriages because where there is no will to revoke, the predatory spouse would still take the lion’s share of the inheritance on intestacy. Therefore, this is only a sticking plaster on the more widespread and pressing issue of financial abuse.

Secondly, it deprioritises spousal rights to achieve this. Scrapping the rule that a pre-existing will is revoked by marriage will inevitably mean assets will be distributed according to outdated wills that no longer reflect current family structures or relationships, and do not even account for the new spouse. The only remedy for the new spouse will be to make a claim for financial provision under the Inheritance Act 1975, which will undoubtedly cause a rise in contentious claims. It seems wrong to expect a spouse to litigate to ensure they receive financial provision.

Conclusion

The Law Commission’s report is a welcome and necessary step toward modernising wills law. Its recommendation to adopt the MCA 2005 test is a clear win for clarity and fairness. But its position on the revocation-by-marriage rule is seemingly flawed – as it both fails to address predatory marriages while risking unfair outcomes for legitimate spouses.

This article was first published by eprivateclient in June 2025