The government has been urged to act now to modernise the law relating to wills and probate to ensure that people’s final wishes are followed and protected.

The Law Society wants recommendations for reform set out by the Law Commission in May 2025 to be adopted as soon as possible.

The Commission’s report Modernising Wills Law set outs how legislation that has remained largely the same since the Wills Act 1837 should be updated. Key recommendations included:

• Giving the court the power to dispense with the formality requirements to make a valid will, to be used on a case-by-case basis. This power will allow the court to deem a document or record to be a valid will where the court is satisfied that the document reflects the person’s settled testamentary intentions.
• Reducing the minimum age at which a person can make a will from 18 to 16. Currently, a person must be 18 years old to make a valid will. A child who is terminally ill and who does not wish one of their parents to inherit from them or decide what happens to their body when they die, for example because the parent has not played a role in their life, has no ability to set out their binding wishes.

• Abolishing the existing rule that a person’s will is automatically revoked when they marry or enter a civil partnership. This rule can be exploited by those who enter a predatory marriage with a vulnerable person – marrying them to inherit from them.

• Increasing protections for those who are coerced into making a will. It is currently too difficult to challenge the validity of a will based on undue influence. Evidence of undue influence can be hidden because it often happens behind closed doors and by someone close to the person making a will, and the law places a high evidential burden on anyone alleging undue influence. As a result, the law is not adequately protecting vulnerable people from financial abuse. For that reason, we recommend 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 the court with reasonable grounds to suspect it.

• Making specific provision to enable electronic wills to be formally valid – an important update to the law of wills to make it fit for the 21^st Century. However, we also recommend that electronic wills should have to meet specific requirements to ensure that they are safe and reliable.

• Clarifying the law on testamentary capacity. There are currently two tests which apply to the question of testamentary capacity, depending on the issue being decided. The common law test applies if the question is whether the person has capacity to make their own will, and the test in the Mental Capacity Act 2005 applies if the question is whether the court has the power to make a will on the person’s behalf. We recommend that only one test should apply: the modern test in the Mental Capacity Act 2005.

A spokesperson for the Law Society said: “There has been no movement from the government on updating this crucial law that affects every single one of us. It is imperative that the Wills Act is brought in line with our times, or else the government risks denying people access to justice and the right to protect their last wishes.

“The time for the government to act is now.”