What are The Law Commission’s Proposals to Make Electronic Wills Valid, Empower Courts to Infer Undue Influence, and Abolish the Rule that Marriage Revokes a Will

In recent years, the legal landscape surrounding wills and estates has faced challenges amid changing societal norms and technological advancement. The Law Commission of England and Wales has undertaken a thorough review of the law of wills, putting forth a comprehensive consultation paper aimed at modernising and reforming existing legislation. With proposals to make electronic wills valid, empower courts to infer undue influence and abolish the conventional rule that marriage revokes a will, these changes could significantly impact how individuals approach estate planning. This detailed blog explores these proposals, their potential implications, and the rationale behind the Law Commission’s recommendations.

Understanding the Current Legal Framework

Before delving into the proposed reforms, it is essential to understand the existing legal framework surrounding wills in England and Wales. The Wills Act 1837 has traditionally governed the formation and validity of wills, establishing the key legal criteria that a will must meet to be deemed valid. These requirements include the need for the testator (the individual making the will) to be of sound mind, having attained the age of majority, and ensuring that the will is signed in the presence of at least two witnesses.

However, as society evolves, the existing legislation has come under scrutiny regarding its relevance, particularly concerning technological advancements and the changing nature of relationships. The Law Commission’s proposals aim to bridge the gap between traditional legal frameworks and contemporary realities.

Proposal 1: Making Electronic Wills Valid

One of the most significant proposals put forth by the Law Commission is to allow the creation of electronic wills, thereby recognising the validity of digital documents for estate planning purposes. This change comes in response to the increasing reliance on technology in everyday life, where individuals frequently conduct transactions and communications over electronic platforms.

Rationale Behind the Proposal

1. Changing Trends: With the rise of remote working, online services and the growing prevalence of digital communication, many people are accustomed to using technology for important decisions. Recognising electronic wills as valid aligns with contemporary practices.

2. Accessibility: Electronic wills would enhance accessibility for individuals who may struggle with traditional methods of will-making. This includes those with disabilities or those who live in remote areas, making it easier for individuals to create and execute a legally binding will.

3. Streamlining Processes: Embracing electronic wills could lead to more efficient and streamlined processes within the probate and estate administration systems. The digitisation of documentation can simplify record-keeping and facilitate faster distribution of assets.

Proposed Safeguards

To prevent potential abuse and ensure that electronic wills are executed validly, the Law Commission proposes several safeguards, including:

– Requiring electronic wills to be signed using a secure digital signature.

– Establishing regulations regarding the authentication of the testator’s identity.

– Implementing provisions for witnesses to observe the signing of electronic wills remotely through video conferencing.

Proposal 2: Empowering Courts to Infer Undue Influence

The issue of undue influence has long posed challenges in disputes concerning the validity of wills. Undue influence exists when a testator is manipulated or coerced into making decisions that may not reflect their true intentions. The Law Commission’s proposal seeks to empower courts to infer undue influence based on the circumstances surrounding the creation of a will.

Rationale Behind the Proposal

1. Enhancing Protections: The proposal aims to strengthen the legal protections for vulnerable individuals who might be susceptible to coercion or manipulation. By allowing courts to infer undue influence in certain situations, the law can better safeguard testators’ true desires.

2. Reducing Burdens of Proof: Currently, proving undue influence requires a high burden of evidence, making it challenging for beneficiaries to contest a will in cases of suspected manipulation. The proposed change could help alleviate this burden and provide a fairer process for those seeking to challenge suspicious arrangements.

Practical Considerations

In practical terms, the Law Commission envisages that courts would consider various factors when inferring undue influence, including:

– The relationship between the testator and the alleged influencer.

– Any significant change in the testator’s behaviour or decisions leading up to the creation of the will.

– Circumstances that raise questions about the validity of the testator’s intent.

Proposal 3: Abolishing the Rule that Marriage Revokes a Will

Currently, under the Wills Act 1837, marriage automatically revokes any existing will made prior to the marriage. This rule has been criticised for leading to unintended consequences, particularly for individuals who have made prior estate planning arrangements but fail to execute new wills post-marriage.

Rationale Behind the Proposal

1. Reflecting Contemporary Relationships: In today’s society, many couples cohabit or re-partner without formalising relationships through marriage. Abolishing the automatic revocation of wills would align more closely with the modern reality of various family dynamics.

2. Preventing Unintended Consequences: The automatic revocation rule can lead to distressing situations where individuals unintentionally die intestate (without a will) after getting married, resulting in their assets being distributed according to intestacy laws rather than their wishes.

Proposed Changes

Under the Law Commission’s proposal, the rule that marriage automatically revokes a will would be abolished, thus allowing individuals to retain their existing wills even after marriage. The proposal includes provisions that would require individuals to actively revoke or update their wills following significant life events, such as marriage or divorce.

Implications of the Proposed Reforms

The Law Commission’s proposals have the potential to significantly impact estate planning practices:

1. Increased Autonomy: By allowing electronic wills and empowering courts to infer undue influence, the proposed reforms enhance individuals’ autonomy in their estate planning decisions.

2. Greater Legal Clarity: Abolishing the rule that marriage automatically revokes a will can provide greater legal clarity and certainty for individuals during life transitions.

3. Facilitating Access to Justice: The reforms aim to make the wills process more accessible and equitable, lowering barriers for individuals seeking to ensure their wishes are upheld.

4. Encouraging Responsible Estate Planning: Individuals may be more inclined to engage in proactive estate planning knowing that their wills will remain valid despite changes to their personal circumstances, such as marriage.

Conclusion

The Law Commission’s proposals to make electronic wills valid, empower courts to infer undue influence, and abolish the automatic revocation of wills upon marriage represent a significant step towards modernising estate planning law in England and Wales. As society continues to evolve, adapting legal frameworks to better reflect contemporary realities is paramount. By introducing these reforms, the Law Commission aims to make the process of creating and enforcing wills more accessible, equitable, and aligned with individuals’ true intentions.

As these proposals move forward, it is essential for stakeholders, legal professionals and the public to engage in discussions that will shape the future of estate planning and ensure that everyone is empowered to express their wishes regarding their possessions and legacy. The potential for positive change is vast, and with the right legal adjustments, individuals can navigate their estates with confidence that their voices will be heard and respected.

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This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on 1st June 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of London’s leading lawyers. His profile on the independent Review Solicitor website can be found Here