The long-awaited Law Commission report on reform to the law relating to wills has recommended significant and (mostly) welcome changes that would modernise the current law to reflect changes in society since the law was past (nearly 200 years ago) and put in place better protections for elderly and vulnerable testators. 

Significantly, the report recommends a change in the test for capacity to make a will and advocates that the Mental Capacity Act 2005 is the correct test (not Banks v Goodfellow). 

Particularly welcome is the recommendation to abolish the profound unfairness sometimes created by the automatic revocation of a will by marriage – an issue that has grown to prominence recently with the rise of predatory marriage, and an issue that parliament has repeatedly been called on by judges to address. The abolishment of the rule is also intended to reflect changes in society and increases in cohabiting couples 

Changes to the undue influence test also represent real progress – having a “two tier” test as we currently do creates significant uncertainty for litigants and the Commission’s proposals deal with this, proposing that courts be able to “infer” undue influence if there is evidence of reasonable grounds that such influence existed. The proposals in relation to undue influence would significantly lower the current threshold and, if approved, may lead to an increase in litigation.  

Whilst attempts to recognise electronic wills and a more digital approach to the creation of wills are to be encouraged, significant caution must be taken as one of the main advantages of the formalities required under the Wills Act 1837 is the degree of protection and certainty it affords. What the proposals for electronic wills will mean in practice is very much up in the air. 

Finally and perhaps what may become one of the more controversial aspects of the report, is the suggestion that the court could be given a power to “dispense” with the formalities required to execute a valid will in “exceptional circumstances” and to recognise, for example, elecontric documents or recordings if the court is satisfied they reflect the testator's last wishes. 

Though the majorty of these recommendations must be welcomed, there must be a risk of an  increase in potential litigation too – more flexibility around testamentary affairs and the modernising of an archaic system can only be a good thing, but where such wide-ranging reform is envisaged and the court is provided with dispensing powers and the formality requirements to execute a document as important as a Will are put into question, it must be assumed that litigation will follow.