A Guide to Writing a Will in the Digital Age: Law Commission Reforms Explained

The evolution of testamentary law in England has been significantly shaped by two landmark pieces of legislation: the Statute of Wills 1540 and the Wills Act 1837. These statutes not only transformed the legal landscape but also reflected broader societal changes in property rights and inheritance practices.

As digital technology reshapes how we live, work, and plan for the future, the Law Commission’s latest reforms aim to bring will writing into the digital age. From proposals for electronic wills to safeguards for vulnerable individuals, these changes reflect a modern, accessible approach to securing your final wishes.

The Evolution of Testamentary Law in England 

The Statute of Wills 1540

Enacted during the reign of Henry VIII, the Statute of Wills 1540 marked a transformative moment in English property law. Before this statute, landowners had limited ability to control the inheritance of their real property, which typically followed the rigid rules of primogeniture or reverted to the Crown if no heirs existed. 

The statute allowed landholders, for the first time in post-Conquest England, to devise their land by will, granting them greater autonomy over their estates. This legislative shift was a political compromise between the monarchy and landowners, reflecting growing discontent with royal control and inheritance constraints. 

The statute also introduced formal requirements for wills, such as being in writing and witnessed, many of which still influence modern probate laws.

The Wills Act 1837

Nearly three centuries later, the Wills Act 1837 consolidated and modernised the law relating to wills in England and Wales. It repealed earlier statutes, including the 1540 Act, and established uniform rules for the creation and execution of wills. 

Key provisions included the requirement that a will be in writing, signed by the testator, and witnessed by two individuals present at the same time. The Act aimed to simplify and standardise testamentary practices, ensuring greater legal certainty and reducing disputes over validity. 

Its influence endures, as many of its principles remain embedded in current UK law and have shaped will-making practices in other common law jurisdictions. 

The Statute of Wills 1540 and the Wills Act 1837 represent pivotal moments in the history of English testamentary law. By granting individuals greater control over their estates and standardising the process of will-making, these statutes have left a lasting legacy that continues to influence modern legal practices.

The 2017 and 2023 Consultations

The 2017 Will consultations were introduced to modernise how wills are drafted and interpreted, particularly considering the increasingly complex family structures and the growing importance of digital assets. 

These reforms aimed to make wills more accessible and easier to understand, while also introducing flexible trust structures—such as discretionary and life interest trusts—to better reflect clients’ personal and financial circumstances. 

The goal was to ensure that individuals’ wishes could be clearly expressed and reliably carried out, with improved clarity around guardianship, personal belongings, and legacies. 

By 2023, further consultations were held to refine the framework in response to new challenges, including the management of digital estates and the need for more inclusive will-making processes. 

These updates brought several advantages: greater legal certainty, better protection for vulnerable beneficiaries, and more tailored estate planning options. Overall, these consultations represent a significant step forward in ensuring wills remain fit for purpose in a changing world.

The Law Commissions proposals and draft bill published on 16 May 2025

The first comprehensive review of the law of Wills for nearly 190 years was published on 16 May 2025 in the Law Commission Report. At the helm of the project was Professor Nick Hopkins, the Commissioner for Property, Family and Trust Law. Professor Hopkins explained that the Commission had three main focuses when considering the reforms:

“To provide clarity and certainty in the law

To protect vulnerable testators

To ensure testators’ intentions are given effect” (note this might need to be footnoted here as I got this from the podcast/article released from Todays Wills and Probate 30.05.2025 – (Listen to the full interview: Professor Nick Hopkins, Modernising Wills Law | Today’s Wills and Probate)

Further considerations, such as an aging population and the number of people living with capacity issues;  the increased wealth of individuals; and the reliance on electronic documentation in our modern society, all added to the challenges of producing reforms which reflect modern life. Nevertheless, over thirty proposals have been produced, with the key recommendations as follows:

Testamentary Capacity

At present, two tests are used to assess testamentary capacity. Banks v Goodfellow, case law from 1870, which is used by legal professionals in assessing a testator’s capacity at the time of executing a Will, and the Mental Capacity Act 2005, which is used by the Court of Protection in assessing the capacity of an individual for a Statutory Will.

The recommendation by the Law Commission is for testamentary capacity to be brought in line with the Mental Capacity Act 2005, supported by a code of practice based on Banks v Goodfellow.

Age of the Testator

Closely linked to the above, the general rule is that only an individual over the age of 18 can execute a Will, as someone younger is deemed to not have the requisite mental capacity.

However, a 16-year-old child, who is perhaps terminally ill, currently has no method of leaving binding instructions as to the succession of their estate.

Under present law, the intestacy rules would dictate how the estate is distributed, which would likely be inherited by the child’s parents, whom the child may not even have a relationship with. The Commission has therefore recommended to reduce the age of a Testator to 16 years old.

Electronic Wills

One of the more radical recommendations is the introduction of electronic Wills. Practitioners are very divided by this recommendation, due to the potential security issues and the need for a reliable system.

Additional formality requirements are essential, but if a successful system is implemented, it will make Will writing more accessible and likely to encourage more adults to make a Will. At present, only 49% of adults have a Will.

Abolish the rule whereby a Will is revoked by marriage

This is a welcome recommendation, particularly by campaigners against predatory marriages. At present, a Will is completely revoked by a marriage, which will result in the predatory spouse becoming a main (if not the main) residuary beneficiary of the vulnerable spouse’s estate.

Abolishing the rule will prevent this type of financial abuse, although may result in an increase of spousal claims under the Inheritance (Provision for Family and Dependants) Act 1975.

The Court’s Dispensing Powers

Under current legislation, if a formal requirement of executing a Will has not been followed, the Will is invalid. Some foreign jurisdictions provide their Courts with dispensing powers, which allows them to declare a Will valid, even if it has not followed the formal requirements.

They have the ability to look at the fixed and final intentions of the testator and declare a Will valid. The Commission recommends following this power afforded to foreign Courts to declare Wills valid, in exceptional circumstances, whereby it is clear what the testator’s wishes were, but the Will would be invalid due to formality failures.

Undue Influence

A person may be coerced or pressured into making a Will and under current legislation, it is very difficult to bring a claim of a Will to be set aside in these circumstances. Simply put, the burden is very high on the claimant to prove undue influence.

The Commission recommends that Courts should have the power to infer a Will is valid in circumstances where there are reasonable grounds to suspect undue influence. Again, this will assist in circumstances where there has been financial abuse.

The key recommendations will be expanded upon in a series of further articles.

Along with the report, a draft bill was also prepared, both of which have now been submitted to Parliament. It is now for the Government to determine whether to implement the recommendations produced by the Law Commission.

From Quill to Click: Reforming Wills for the Digital Age

When considering automated will writing, it’s essential to weigh the pros and cons carefully. On the positive side, automated will writing services offer convenience and accessibility.

With just a few clicks, individuals can generate a legally binding will without the need for extensive legal knowledge or potentially high fees typically associated with solicitors. This can be attractive for those with straightforward estates or who prefer to handle their affairs independently.

However, there are notable drawbacks to consider. Automated services may not adequately address complex family dynamics or unique requirements and asset distributions, potentially leading to oversights that could have significant consequences down the line.

Additionally, while many blog generators provide templates and guidance, they cannot replace the personalised bespoke advice that a professional can offer, especially in cases involving trusts or contentious estates.

Consumer attitudes towards Will writing changed with the rise of automation

The rise of automation has significantly influenced consumer attitudes towards will writing, marking a shift in how individuals perceive the process of planning for the future.

Traditionally viewed as a bit of a taboo subject or daunting and complex task, will writing is now being approached with greater ease and accessibility due to automated solutions.

Consumers are increasingly drawn to using automated will writing services, which offer convenience and affordability.

With the ability to create legally binding documents online in a matter of minutes, many individuals appreciate the straightforward nature of these tools.

However, it is essential to note that while automation offers numerous advantages, some consumers still value personalised guidance when it comes to their wills. The complexity of individual circumstances means that there remains a significant portion of the population who prefer consulting with professionals which provides for a bespoke, personalised approach as well as ensuring wishes are accurately reflected and legally sound.

In summary, consumer attitudes towards will writing have evolved alongside advancements in automation. While many embrace these innovative solutions for their simplicity and efficiency, others continue to seek traditional methods for peace of mind. As this landscape continues to change, it’s crucial for service providers to strike a balance between offering automated tools and maintaining access to expert advice where needed.

Ultimately, while automated will writing presents an appealing option for many, it’s crucial to assess your individual circumstances and determine whether this approach aligns with your needs. Balancing convenience with thoroughness is key in ensuring that your final wishes are lawful and accurately reflected.

Statistics

As we continue to navigate an increasingly digital world, it’s clear that automated will writing is not just a trend but a fundamental shift in consumer attitudes dealing with legal affairs.

Stats – Adults making Wills

Statistics reveal a concerning trend among adults in England and Wales regarding the absence of a Will. Recent surveys indicate that nearly 60% of adults have not taken the crucial step of drafting a Will, leaving their estates vulnerable and their wishes unfulfilled. This statistic is particularly alarming considering that many individuals mistakenly believe that their assets will automatically pass to their loved ones without formal documentation.

The implications of dying intestate (without a will) can be significant. Not only can it lead to disputes among family members, but it may also result in assets being distributed according to statutory rules that do not reflect the deceased’s intentions.

1975 Act claims

In the past year, the number of claims filed under the 1975 Act in England has increased. This legislation, designed to provide certain family members with a claim against an estate when they feel inadequately provided for, has become increasingly relevant.

Recent statistics indicate that there were approximately 1,300 claims made under the 1975 Act in the last twelve months alone. This surge may be attributed to various factors, including rising property values and greater awareness of legal rights among potential claimants. The ability to research this topic online has also contributed to this trend by providing easy access to information about making such claims.

Understanding the implications of these figures is essential for both legal practitioners and individuals considering their options regarding inheritance disputes.