Law Commission releases report on Will Reform

5 Min Read

holly-mieville-hawkins-enable-lawThe Law Commission has released their long awaited consultation paper giving suggestions for changing the law saying how and when a will can be made. The Law Commission wants to incorporate changes which have occurred in society since the 1800s, the era the law currently dates from. Capacity to make a will is known as ‘testamentary capacity’.

Some of the key changes are detailed below.

The suggestion that the current case that sets the test for whether a person has capacity to make a will, Banks v Goodfellow, be replaced by the test in the Mental Capacity Act 2005

At present the decision from Banks v Goodfellow provides the testamentary capacity test. The Mental Capacity Act 2005 benefits from a more contemporary understanding of mental health, and the Law Commission has identified certain principles from the Mental Capacity Act 2005 as key to this

  1. a person must be assumed to have capacity unless it is established that he or she lacks capacity;
  2. a person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success;
  3. and a person is not to be treated as unable to make a decision merely because he or she makes an unwise decision.

Changes to the ‘golden rule’ and guidance as to who should perform the capacity assessment and when

The suggestion is that a code of practice in relation to testamentary capacity be introduced to provide guidance on when, how and by whom capacity is assessed. It is perceived that this would assist both those making wills, and solicitors in recognising who should be assessing capacity.

Clearer separation and redefining of knowledge and approval and undue influence

To make a will, a person must have mental capacity to do so (see above). They must also have knowledge and approval of the contents of their will, and have made it without undue influence from others. These two latter requirements have become blurred over the years.

The law commission’s proposal is that the process of establishing whether a person knows and approves their own will, be simplified to a requirement for the testator to know they are making a will, and to intend the terms of that will to be given effect.

It is currently notoriously difficult to establish that a person has unduly influenced another person to make changes to their will. The law commission suggests that it is made easier by having a presumption that there has been undue influence in certain cases, such as where a testator leaves lots of money to a paid carer in their will.

Age of testamentary capacity be reduced to 16

The Commission considers that in certain cases, perhaps as a result of a personal injury settlement, children may benefit from making a will. Therefore there is a suggestion that the minimum age for making a will be reduced to 16, and possibly lower in some exceptional circumstances.

Opening the door for digital wills in future

The law requires that a will is a paper document, however the Law Commission would like provision put in place so that electronic wills can be made in future. The main stumbling block for the introduction of electronic wills is currently that there is no one digital equivalent to a signature. The Commission hopes that in future this will be overcome.

Resolving difficulties created by minor errors in wills

Currently, minor errors in wills, for example, missing a signature from a witness, can result in a will being rendered invalid. This is the case even if it is clear that the person making the will had testamentary capacity and intended the will to represent his or her wishes. It is proposed that the Court will have the power to uphold wills where the strict legal requirements have not been met, so as to ensure that the will the person intended to make is used to determine what will happen to their property.

Extend saving provisions to attorneys, in addition to deputies

Currently, if a deputy gives away or sells something during the lifetime of the testator, that has been earmarked their will for a particular person, the Court of Protection can say that the person that has lost out from this gift can be compensated with money after the death of the testator. The same saving provision currently doesn’t apply for attorneys under a Lasting or Enduring Power of Attorney. The Law Commission’s suggested amendments will amend this, and allow the same saving provisions to apply to attorneys too.

The Law Commission’s public consultation on the topic remains open until 10 November, and more details can be found here:

At Enable Law have a specialist mental capacity team who can advise and support you and your loved ones with financial or health and welfare issues, from capacity assessments to applications to the Court of Protection and advice about Lasting Powers of Attorney. Please contact Holly Mieville-Hawkins, senior associate, on +44 (0)3303 116982 or at

Our colleagues at Foot Anstey have a specialist team who can advise you on making a new will, Inheritance Tax planning and administering the estate of someone that has died. They can also advise you in relation to disputes that might arise in connection with a person’s will or an estate. Please contact Kirstin Cook, legal director on +44 (0)1392 685376 or email if you would like some advice on making a new will. Please contact Alex Rogers, senior associate on +44 (0)1392 685268 or email if you would like some advice on resolving a dispute concerning a will or estate.