Modernising Wills & Mental Capacity Law: What you need to know

On 16 May 2025, the Law Commission published their long awaited report on Modernising Wills Law. It has been nearly 10 years in the making, and is accompanied by a Draft Wills Bill, and explanatory documents. The headlines that have resulted from it are that it makes a recommendation that electronic wills are legalised, and that the Wills Act 1837 will not see it’s 200^th birthday. However, beyond these headlines many changes are proposed that will have a significant impact on the day to day lives of those with impaired mental capacity, and the friends, family and professionals that support them.

The test for testamentary capacity is to be changed

Banks v Goodfellow (1870) is the long standing test for whether a testator has mental capacity to make a will at the point that they are making one, or where mental capacity is reviewed after it has been made. At the moment, in order to be able to make a will, a testator must be aware of:

• The nature and effect of making a will
• The extent and nature of their assets
• Who their beneficiaries are and what sorts of expectations beneficiaries may have of inheriting

They must also have no ‘insane delusions’ regarding any of the above issues. Importantly, for the law as it stands at the date of publication, if at any time following the making of their will, any ‘real doubt’ is raised about the testator’s capacity to have made their will, then the burden of proof shifts to the person trying to establish that the will is valid. This means that in litigation, the person trying to prove the will must persuade the Court that the testator had capacity to make the will on the balance of probabilities.

However, currently, the law is different for people in respect of whom a statutory will application is made. A statutory will application is made when there is evidence that a person lacks capacity to make a will for themselves. In those cases, the Court of Protection will consider the test of capacity as set out in s.3 Mental Capacity Act 2005 to determine whether or not the person lacks capacity to make a will. If they lack capacity to make a will, then the Court of Protection can step in and make a statutory will on their behalf. Importantly, there is a presumption of capacity, and the burden of proof is on any person trying to establish that the testator lacks capacity.

The proposal is that the test in Banks v Goodfellow is replaced with the test for capacity under the Mental Capacity Act 2005, so that there is harmony in respect of the tests and burden of proof for testamentary capacity, no matter who is looking at the issue, and when. Importantly, the saving provision in Parker v Felgate (1883) will remain in place, which means that if a person loses capacity between the date that they give instructions for a will and the date that it is signed, provided that the testator had capacity at the time that the instructions were given, the will was prepared in accordance with those instructions, the testator’s views have not changed, and at the time of signing the testator is capable of understanding and did understand that they were executing a will that they had previously given instructions for, then the will is validly executed.

Changes to statutory wills

1. Best interests test in statutory wills is going to be amended

Currently, when a statutory will is made on behalf of a testator that lacks capacity, the testator’s past and present wishes and feelings, whether communicated verbally, via actions or written down, are taken into account as part of the best interests decision making process. The level of weight that they are given in the best interests assessment process depends on the facts of the case. However, the Law Commission has recommended that s.4(6) Mental Capacity Act 2005 is amended to require that ‘decision makers give ‘particular weight’ to the testator’s wishes and feelings when determining their best interests’. This move is intended to bring England and Wales more in line with their obligations under Article 12(4) of the UN Convention on the Rights of Persons with Disabilities, which provides that measures relating to legal capacity should “respect” the rights, will and preferences of persons with disabilities. This development is very much welcomed, and is reflective of the current trend in decision making.

2. International elements

Importantly, and also in respect of statutory wills, it is worth noting that there is also a recommendation that the existing limitation on statutory wills only being able to make gifts of immoveable property in England and Wales, and only applies to testators in England and Wales, is lifted. This is a welcome recommendation, particularly as clients becoming increasingly international in terms of their assets, however, great care will be needed to ensure that any conflicts of laws points are managed.

Wills for children

At the moment, only adults aged 18 and over can make a Will. However, the proposals suggest that children age 16 and over should be able to make a Will, and that this should be reflected in a change to the legislation around statutory wills, so that statutory wills can be made for children age 16 or over, where they otherwise lack capacity to make a Will in accordance with the test in the Mental Capacity Act 2005.

3. Supported decision making for will writing

One of the most accurate quotes about mental capacity is:

‘There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine’ (Boyse v Rossborough (1857) 10 ER 1192, 1210).

It reflects the fact that assessing mental capacity is a very difficult job, and it can often be difficult to make a clear determination of whether a person has mental capacity to  make a particular decision or not. As such, the Law Commission has made a recommendation that the ‘MCA Code of Practice should be updated to include specific guidance to those providing support about how they can and should provide support to testators’ as this ‘will ensure that those who provide support to testators to have capacity – whether professionals or the testator’s friends or family members – will be able to access information on how to do so’. The recommendation is that a formal scheme for supported decision making in wills is introduced.

No revocation of a will by marriage

At the moment, if anyone gets married or forms a civil partnership, it has the automatic effect of revoking any existing wills. This is the case whether or not the marriage is then annulled on the grounds of lack of mental capacity to marry. This can lead to a significant change in the newly married person’s testamentary wishes, as intestacy will take effect automatically, and as the test for capacity to marry has a lower bar than the test for capacity to make a will, usually an application for a statutory will is needed. The Law Commission recommends that the law is changed to ensure that where a person gets married, their will is not revoked, and instead, a will shall only be able to be revoked by making another will, revoking the will or destroying it.

Ademption equalised between attorneys and deputies

Ademption is what happens when a specific gift is left to a beneficiary under a will, but that item is disposed of before the person dies, and therefore the gift under the will cannot take place. For deputies, if the specific gift is of real property (ie a house or flat), and the real property is disposed of before the testator’s death, then the financial equivalent of the value of the real property is able to pass to the beneficiary as a substitute for that real property (paragraph 8 of Schedule 2 to the Mental Capacity Act 2005). However, at the time of writing, if an attorney gifts real property away before the testator dies, then there is no equivalent saving provision. The Law Commission recommends that ‘dispositions of property by donees acting under a Lasting Power of Attorney should be included within the scope of the exception to ademption currently in paragraph 8 of Schedule 2 to the Mental Capacity Act 2005.’. This is a very sensible move, and one that will go a long way to ensuring that a testator’s wishes and feelings are honoured.

The changes proposed by the Law Commission are significant and wide ranging for anybody that may have impaired or fluctuating mental capacity in respect of the management of their finances, which will have a very positive impact on many lives. If you want to discuss any of the above with our specialist team, then please get in touch.