Parchment to PCs: Changes to the Wills Act 1837 and how it affects you

 

 

Believe it or not, the current legislation in relation to wills was passed in 1837!  

Current Law

The 1837 Wills Act originally required an individual to be the age of 21 to make a will but was subsequently reduced to the age of 18 (which is the age at which individuals are legally deemed to be adults).  The will must be in writing and signed by the person making it in front of two independent witnesses.

Turning point

In 2019, the Covid pandemic shook things up.  Lockdowns and social distancing made it difficult for individuals to make a will and to comply with the requirements under the 1837 Act.  Temporary reforms were therefore made to allow remote witnessing of wills by video conferencing which led to proposals for change to modernise the current system.

Key proposed changes and how it could affect you

The key proposals for change include:

  1. Allowing electronic wills and remote signatures provided that a reliable system is used to ensure the security of the will. "Reliable” meaning that at the time of signature, the system links with the person whose signature it is, it can identify the original will against copies, and protects against alteration/destruction by anyone other than the person making the will (“the testator”) or person authorised by the testator.
  2. Relaxing formalities by introducing a “dispensing power” for the court to accept a will that does not comply with the formalities and would otherwise be deemed as invalid. If a will is deemed invalid, the previous will would remain in effect or if there is no will (other than the invalid will), the rules of intestacy would apply.
  3. Reducing the minimum age for making a will to 16; it is also proposed, in exceptional circumstances and with an order of the Court, children under the age of 16 will be able to make a will. Interestingly, the minimum age to make a will in Scotland is currently 12.
  4. Revocation of wills on marriage or civil partnership is to be abolished which can be helpful for predatory marriages as the threshold for mental capacity to marry or form a civil partnership is lower than for making a will. If this provision takes effect, an unprovided for spouse or civil partner can still make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.
  5. Bringing the test for mental capacity to make a will (currently as set out in the case Banks v Goodfellow 1870) in line with the test set out in the Mental Capacity Act 2005.
  6. Gifts to witnesses are currently invalid if made to a cohabitant of witness (or similarly to someone who signs on behalf of the testator).The court will have power to save those gifts if it is deemed just and reasonable.
  7. Extending powers to rectify – Section 20 Administration of Justice Act 1982 currently allows the court to correct a will where it fails to carry out testator’s intentions due to a clerical error or failure of the drafter to understand the testator’s instructions. Recommendations have been made for the court to be allowed to rectify if it is satisfied that the will does not give effect to testator’s intentions.

Time scale for implementation

The Law Commission published its final report on 16 May 2025.  An interim response is due within six months of the publication of the report and a full response within a year and it is expected that the bill will pass around May 2026.

Do I need to do anything?

If you have an existing will, it is always worth reviewing regularly as your family and finances may change.  If you have done any estate or inheritance tax planning, this will be based on the law at the time which may also change and therefore your will could be out of date.

 

Bik-ki Wong

Head of Wills, Trusts and Probate at Myerson Solicitors

Bik-ki joined Myerson in 2016, she was promoted to Head of Wills, Trusts and Probate in 2019, establishing the firm’s Private Wealth sector.

Bik-ki is STEP-qualified, a fully accredited member of Lifetime Lawyers, and part of the Law Society’s Private Client Section. She advises high-net-worth clients and those with complex or sensitive circumstances, including mental capacity issues, and is known for her clear, compassionate approach. She also speaks Cantonese and regularly advises clients from Hong Kong and China on cross-border estate and tax planning.

Bik-ki is ranked individually in the Chambers High Net Worth Guide and recognised as a Leading Individual in the Legal 500, which praises her expertise and personal service. In 2023, she was named one of Manchester’s most influential private wealth lawyers by Business Today and a top UK probate and wills lawyer by Spear’s.

 

About Myerson Solicitors 

Founded in 1982 in Altrincham, Greater Manchester, Myerson Solicitors is a Top 200 UK and ‘Top Tier’ Legal 500-rated law firm. It provides expert commercial and private legal services to businesses and individuals nationwide and beyond. With a dedicated team of over 160 employees, including 25+ partners, Myerson consistently demonstrates its commitment to excellence in the legal field.

Myerson has received recognition from The Times as one of the "Top 200 Best Law Firms" in 2019, 2021, and 2023. In September 2024, Myerson became the first law firm in Manchester to convert from an LLP to a 100% employee-owned business, reinforcing its commitment to fostering a positive and supportive workplace environment for its employees.

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