Electronic Wills: What the Law Commission Wants to Change

Here is something that sounds made up but isn't. The rules governing how you write a Will in England and Wales come from the Wills Act 1837. Victoria had just got the crown. Most people couldn't vote. A fountain pen was basically science fiction. And we are still, nearly two hundred years later, following the same playbook. Paper document. Wet-ink signature. Two witnesses standing there watching you sign.

I think the gap between how we live now and how we are forced to make Wills has become genuinely embarrassing. In 2025 you can buy a house without picking up a pen. You can get divorced online. You can sign a mortgage deed electronically. You can even do a Lasting Power of Attorney through the Office of the Public Guardian's digital service. But writing a legally valid Will? For that you need actual paper and a physical signature while two humans stand there in the room with you. How does that make any sense in 2025?

So in May 2025 the Law Commission published its final report. They called it "Modernising Wills Law" and attached a draft Bill that would, for the first time in any meaningful sense, overhaul the Wills Act. Some of the proposals caught me off guard. Honestly, before anyone starts celebrating or panicking, it is worth being precise about what has been recommended, what has not, and what any of it means for you today. Which, I will warn you now, is basically nothing. Yet.

The big one. The Commission says Wills should be capable of being created and signed electronically. Currently the law says a Will must be "in writing," which everyone has always taken to mean on paper. They want to change that so your Will could be a digital document with an electronic signature.

Before you start drafting your Will in a WhatsApp message: no. It does not work like that. The Commission was careful, and rightly so. An electronic Will would still need two witnesses physically there when you apply your signature. The witnesses sign electronically too. So the witnessing part stays the same. It is the medium that changes. Paper to digital.

Honestly, it frustrates me that the report leaves the technical details deliberately vague. How would you sign electronically? What counts? They say secondary legislation should handle that, so the government can update the rules as technology evolves without needing a whole new Act of Parliament every time some platform changes its interface. I think that is pragmatic, but it also means we genuinely do not know what "electronic signature" would look like in practice. Could be qualified electronic signatures under the UK eIDAS framework. Could be some government-built platform. Could be something nobody has thought of yet. Why publish a landmark reform without pinning down the single detail everyone wants to know?

Look, the bit that genuinely surprised me is that they rejected remote witnessing. Outright. During COVID there was emergency legislation letting Wills be witnessed over video call. That temporary measure expired, and the Commission decided not to bring it back. Their argument is that fraud, undue influence, and coercion are much harder to spot through a screen. I agree with them on this. I know it will frustrate people in rural areas or with mobility issues. But the risk is too high. So even under these reforms, your witnesses still need to be in the room. The electronic part is about how you sign, not about letting your nephew in Australia watch over Zoom.

Right now you need to be eighteen to make a valid Will. There is a narrow exception for military personnel on active service, but that covers almost nobody. The Commission says: drop it to sixteen.

I think my gut reaction was that it feels young. Then I actually thought about it. At sixteen you can join the army with parental consent. You can get married in Scotland. You leave school. You start working. You pay tax. Some sixteen-year-olds have savings, investments, property held in trust. A few are running actual businesses. We are comfortable letting them earn money, own things, hand the government a cut, but we will not let them decide who gets their stuff if they die? Honestly, that falls apart the moment you say it out loud. Why are we happy to tax them but not let them plan for what happens to their own money?

The Commission also points out that several Australian states already let people make Wills at sixteen or younger in certain circumstances. It has worked fine. Nobody has reported problems.

Look, if this ever reaches Parliament I suspect it will go through without much resistance. A teenager with a part-time job and a savings account ought to be able to say who gets that money. Making them wait until eighteen is arbitrary.

This is the proposal I care about most. And it is getting almost no press coverage, which is baffling.

Here is how the current law works. You make a Will. Perfectly good Will. Then you get married. The moment you say your vows, that Will is automatically revoked. Gone. Cancelled. No one tells you. No grace period. No letter in the post. Nothing. If you then die without making a new one, your estate gets distributed under intestacy rules as though you had never written a Will at all. Who thought it was acceptable to silently destroy someone's legal document without even telling them?

Honestly, the rationale made some sense in 1837, I suppose. Marriage was such a seismic event that Parliament figured your old Will could not possibly still reflect your wishes. But in 2025 this rule is actively dangerous. The Commission uses the phrase "predatory marriages" and it is as grim as it sounds. Someone targets a vulnerable person, often elderly, sometimes living with dementia, and pressures or manipulates them into a marriage. The purpose is straightforward: marrying them automatically destroys whatever Will they had. The new spouse then inherits a big chunk of the estate under intestacy. Regardless of how long the marriage lasted. Regardless of what the person actually wanted.

This is not hypothetical. The Commission cites documented cases. Care home residents. People with dementia. Individuals targeted specifically because marrying them would wipe out the Will that left everything to their children.

I think the recommendation is the most important proposal in the whole report: abolish automatic revocation. If you get married, your existing Will stands. You are free to write a new one, and most people would, but it is your choice. That single change would close off a form of financial abuse that the current law practically invites.

They also recommend scrapping the equivalent rule for civil partnerships and removing the partial revocation that currently happens on divorce. The goal is clean: your Will stands unless you decide to change it.

The legal test for whether someone has the mental capacity to make a Will comes from a case called Banks v Goodfellow. From 1870. Another Victorian-era rule. It says the person needs to understand what making a Will means, know what they own, recognise who might expect to benefit, and not be suffering from any "disorder of the mind" that warps their decisions.

That test has done alright for 150-odd years. But it sits in an awkward position next to the Mental Capacity Act 2005, which governs capacity for basically everything else in life. The 2005 Act works on different principles: you are assumed to have capacity unless proven otherwise, capacity is assessed per decision, and you must take all practical steps to help someone make their own choice before concluding they cannot.

Look, two different legal tests for the same basic question. One for Wills, one for everything else. I find that confusing and I work in this field. How is a family supposed to navigate that without professional help?

I think the Commission is right to want to bring the Will-making test in line with the 2005 Act. In practice that means starting from a presumption of capacity. It means professionals, solicitors, Will-writers, doctors, should try to support someone in making their own decision rather than ticking a box and moving on.

This matters enormously for people with early-stage dementia, learning disabilities, fluctuating mental health conditions. Under the old test, you might be found incapable on a bad day even though on a good day you are perfectly fine. Honestly, the 2005 Act framework is more grown-up about this. It acknowledges that capacity is not binary. That the right support at the right time can make someone capable of making their own decisions.

One test for capacity. Applied the same way everywhere. That is how it should work. The fact we have tolerated two parallel standards this long is strange.

This is the proposal I find most interesting, and I realise that probably reveals something about me I would rather not examine. But it matters.

The Commission wants to give courts a "dispensing power." If a document does not tick every formal box for being a valid Will, but the court is satisfied it represents what the person genuinely wanted, the court can treat it as valid anyway.

Right now, if your Will fails on a technicality, that is it. One witness instead of two. Signature in the wrong spot. A digital document when only paper counts. Does not matter if your wishes were crystal clear. Does not matter if every person in your life knows what you wanted. The formalities were not met, so the document is void, and your estate goes through intestacy. Is it really justice when everyone in the room knows what the person wanted, but the law says "sorry, wrong number of witnesses, tough luck"?

I have heard too many of these stories. Families torn apart because a witness stepped out of the room for ten seconds. Estates falling to distant relatives because a signature ended up in the margin instead of at the bottom. Honestly, it makes you wonder whether the legal system is actually trying to carry out people's wishes or just running an obstacle course.

The dispensing power would let courts ask a better question: does this document reliably show what the person wanted? If yes, it can be treated as a valid Will despite the technical problems. Australia, New Zealand, and several Canadian provinces have been doing this for years. Courts there do not use it to validate scribbled notes or vague texts. They apply it where the intention is obvious but someone tripped over a procedural requirement. A Will with one witness. A typed document never printed. A handwritten letter clearly setting out who gets what but never formally witnessed.

I think it would not be easy to invoke, and that is appropriate. You would need to prove, on the balance of probabilities, that the document genuinely reflects what the deceased wanted. Courts would still prefer properly executed Wills. Most estates would never need this. But for the cases where a technicality defeats a person's clear intentions, it is a genuine safety net. One that is long overdue.

The Commission published a draft Bill alongside the report. Worth noting because it means the proposals have been translated into actual legislative language. It is not just "we think you should do X." It is "here is the legislation, ready to go." That is a bigger step than most people realise.

But a draft Bill is not a law. It has not been introduced to Parliament. The government has to decide whether to adopt it, whether to take all of it or cherry-pick, and when to squeeze it into the parliamentary schedule. None of that has happened.

Look, the Law Commission's record on getting things implemented is patchy at best. Some reports become law within a couple of years. Some gather dust for a decade. Some vanish entirely. The Commission can recommend all day long but it cannot force anyone's hand. When was the last time you saw Will reform dominate the evening news?

I think as of May 2025 the government has basically said "yes we have seen it, thanks." Which tells us nothing. That is pretty standard for this stage. Parliament has a long queue and Will reform, however overdue, is not going to dominate the headlines. Honestly, nobody should be making plans based on these proposals becoming law soon. Or possibly ever, though I would very much like to be wrong about that.

Nothing. The law today is the same as it was the day before the report came out. Paper Will. Wet-ink signature. Two witnesses in the room. Marriage still revokes your Will. Minimum age still eighteen. Courts still cannot rescue a Will that fails on formalities.

If these reforms eventually become law I think they will make a genuine difference. Electronic Wills would help people with mobility issues, people in remote areas, people who find the whole idea of sitting in a solicitor's office deeply off-putting (there are more of those than you would think). Scrapping marriage revocation would protect vulnerable people from a specific form of exploitation. The dispensing power would stop technicalities from overriding what someone clearly wanted. Aligning the capacity test would end the confusion of having two different standards for the same question.

None of that is happening today. If you have not got a Will, you need one now. Under the current rules. If you have got one that is out of date, it needs updating now. Under the current rules. "I will wait and see what Parliament does" is not a plan. It is a gamble, and you are gambling with your family's money. So what are you actually waiting for?

Honestly, the single most useful thing you can do after reading this is exactly what you should have been doing anyway: make sure you have a valid, current Will that says what you actually want. Signed on paper. Witnessed by two people. Stored somewhere safe. If the law changes down the line, brilliant, we will help you make the most of whatever new options come along. Until then, the basics have not changed and the basics still matter.

At Keystone we make the Will-writing process as painless as we can. Step-by-step guidance, plain language, a legally valid document at the end. If you have been putting it off, consider this your nudge.

For quick reference, here is what the Law Commission recommended in its "Modernising Wills Law" report:

Electronic Wills. Wills could be created and signed digitally. Two witnesses still required, physically present. Remote video witnessing was considered and rejected. Technical standards to be set in secondary legislation.

Minimum age lowered to sixteen. Down from eighteen. Recognises that young people earn, own things, and ought to be allowed to decide what happens to those things.

Marriage no longer revokes a Will. The automatic revocation rule would go. Your Will stands unless you choose to change it. Closes the loophole exploited in predatory marriages of vulnerable people.

Mental capacity test updated. Brought in line with the Mental Capacity Act 2005. Presumes capacity unless proven otherwise. Requires reasonable steps to support someone in making their decision.

Court dispensing power. Courts could validate documents that do not meet formal requirements, provided they clearly reflect what the person wanted. Stops technicalities from defeating genuine wishes.

Draft Bill published. Legislative text is ready but the government has not committed to introducing it or indicated when it might happen. Will any of this actually reach the statute book? Your guess is as good as mine.

This article discusses proposals from the Law Commission's May 2025 report "Modernising Wills Law" as they apply to England and Wales. These are recommendations, not current law. The rules for making a valid Will have not changed. Keystone Estate Planning is an estate planning service, not a law firm. For advice on your specific legal situation, speak to a qualified solicitor. If you are concerned about the capacity of a family member to make a Will, seek specialist legal and medical guidance.