Barrister says major law change means 'emails could be considered legal wills'

Heralded as one of the most substantial legislative overhauls in a generation, the Law Commission's Modernising Wills Law reform drags a 188-year-old statute into the 21st Century with far-reaching consequences. That's the view of a barrister and academic expert.

The Wills Act 1837 had remained largely untouched for three decades, barring some temporary pandemic adjustments, rendering it incapable of addressing contemporary society's needs and Britain's ageing population. For countless families, this resulted in complicated court battles and heartbreaking disputes over loved ones' inheritances.

The Law Commission explained: "The reforms will modernise the law governing wills to ensure it is fit for purpose in the modern age. Our recommendations are aimed at supporting testamentary freedom, protecting testators, and increasing clarity and certainty in the law. The final report is accompanied by a draft Bill for a modern Wills Act, to replace the Wills Act 1837."

Helene Richman, barrister and lecturer specialising in wills and trusts at The University of Law, said: "The previous Wills Act, among other things, meant wills could essentially become null and void if someone was to marry, as well as lacking robustness when it came to assessing someone's mental capacity. With second and third marriages later in life now common, an ageing population and rising cases of dementia, as well as an increasingly tech-savvy population, the Modernising Wills Law reform is a very welcome update.

"Importantly, the new rules provide greater protection against undue influence, i.e. when a person of influence wrongly pushes for changes in a will that will benefit them. We could also see more robust tests for mental capacity when it comes to conditions like Alzheimer's and dementia. While these updates aren't yet law and we await a response next month, there are some interesting points to keep an eye on."

Changes to The Wills Act 1837

Electronic and informal wills

For the first time, electronic wills could be legally valid if they are proven to use reliable methods and aren't open to any tampering. This would mean being able to clearly identify the person who made the will and distinguish the original.

Perhaps most interestingly, courts could accept informal wills. Providing the will clearly reflects what the person wanted, it may not need to be a formal signed document.

In theory, this means the court could accept an email, video, voice note, or simply a note of paper - though Helene still advised people to create something a little more watertight to be safe.

Marriage won't revoke your will

A common issue with existing wills is that marriage will automatically revoke them. This raises two main concerns, Helene said - forced marriage and marriage later in life.

She explained that forced marriage was "certainly a concerning issue", where people deliberately enter matrimony with the sole aim of securing financial inheritance and nothing more. Those who wed later in life frequently encounter difficulties here, with disputes commonly emerging from offspring who expected to receive inheritance but may find themselves without any entitlement. The fresh legislation should eliminate this problem entirely.

Should you have a will established, it shall remain valid even after marriage - your inheritance won't automatically transfer to your spouse unless you specifically stipulate so.

Enhanced mental capacity assessment

The legislative updates will align capacity testing with the Mental Capacity Act. This offers improved safeguarding regarding any type of reduced mental capacity, such as Alzheimer's and dementia.

This will deliver clearer guidance on how and when capacity ought to be assessed. The aspiration is, Helene explained, that this will eliminate uncertainty and reduce unnecessary conflict and disagreement during what is frequently a highly emotional period for everyone concerned.

Reinforced safeguards against improper influence

Under the existing Wills Act, it can prove extremely challenging to demonstrate whether someone has exercised improper influence over an individual's will. This means if someone in a position of authority has pressured the will's creator to act in a way that benefits them, it remains difficult to establish and can frequently result in a lengthy and arduous legal dispute. Fresh legislation will establish far clearer regulations and assumptions that courts can apply in legal proceedings, Helene explained.

Should the proposed laws be enacted, doubt will immediately emerge when someone in a position of power appears to gain from a will. Once such suspicions surface, responsibility will transfer to the influential individual to demonstrate they have not pressured the will-maker.

Helene said: "Much of the UK's law was created centuries ago and while there is constant work to keep laws up to date, they don't always evolve as quickly as society does. In many cases, this leaves us with outdated legislation that needs to be brought in line with modern context.

"It's important to note that these changes are not yet law and won't be for some time yet. We expect the Government's response to these reforms in November, then a full response and potential introduction of laws in May 2026, so for now it's business as usual. It is certainly worth keeping an eye on what happens as there will be very real consequences for the average person when it comes to wills and inheritance."