Law Commission report recommends repeal of nearly 200 year old Wills Act

Currently, the law governing the making of wills in England and Wales is set out in the Wills Act 1837. A new report by the Law Commission provides the first comprehensive review of this area of law in nearly 200 years and recommends a wide range of changes, which the government is likely to give serious consideration.

The report includes 31 recommendations. Three notable highlights are:

1. Removing the automatic revocation of a will upon marriage

Under current law, a will is automatically revoked when the testator marries. To preserve their testamentary wishes, they must re-execute the same will after the date of marriage. In the 1800s, it was assumed that marriage would take precedence over previous wishes, but today’s testators often have more complex family arrangements and may wish to provide for children from previous relationships or close friends.

2. Ratification of improperly executed wills

The Wills Act 1837 requires a valid will to be signed by the testator in the presence of two witnesses. If these formalities are not followed, the will is invalid and the estate is distributed according to the rules of intestacy. The proposed reform would allow courts to recognise wills that fail on minor technicalities, such as improper execution. The report further recommended that in some cases, a court should be able to admit any document as a will, such as a note on a scrap of paper, as long as it clearly reflects testamentary intent.

3. Support for electronic wills

At present, wills must be made in writing. However, following the COVID-19 pandemic, the Law Commission has acknowledged the growing need for flexibility, such as remote witnessing. The report recommends support for electronic wills, provided they can be kept secure.

To read more about the Law Commission’s recommendations, visit their website.

Our Wills and Probate team will be closely monitoring the government's response to the report in the coming months.