188 Years On: Does the Wills Act Need Modernising – and What Does it Mean When You Say ‘I DO’?

On 16 May 2025, the Law Commission published a report after a comprehensive review of the Wills Act, which began in 2016.  The report included recommendations to modernise current legislation to promote testamentary freedom in the modern world.

Upcoming reform to the Wills Act 1837?

Wills are among the most important documents a person will create in their lifetime. For almost 200 years, their creation and execution has been governed by the Wills Act 1837, a steadfast piece of legislation. So why, after all this time, is the Law Commission now seeking to modernise it, and will the reforms improve things?

At its current proposal stage, the report covers 31 recommendations most notably:

• Enabling electronic Wills to be legally valid;
• Reducing the minimum age to create a Will from 18 to 16;
• Improving safeguards around the mental capacity of people making Wills;
• Increasing the protection given to those coerced into making a Will; and
• Making it easier for a person’s wishes to be given effect.

In its initial report, the Government welcomes these proposals.

The Wills Act 1837 – the consequences of marriage and civil partnerships

This article focuses on one key area of the report, marriage and civil partnerships. When the Act was last reformed in 1837, that being the year Queen Victoria took the throne, marriage carried a very different significance than it does today.

Currently, under the Wills Act 1837, a person’s Will is automatically revoked when they marry or form a new civil partnership. If a new Will is not subsequently made, then the Intestacy Rules will apply on their death.  These rules provide that the current surviving spouse or partner will receive the majority, if not all of the estate. They will also have the authority to make funeral arrangements and other important administration decisions on behalf of the deceased.

Evidence shows that most people do not know about this automatic revocation rule, and the result is that Wills are being revoked without the Testator’s knowledge, or their agreement, unaware of the legal disarray that lies ahead. To revoke Wills in this way is contrary to the testamentary freedom the Law Commission report is seeking.

There are exceptions to this rule, the principal one being that a Will can state that it is made in the ‘contemplation of marriage or a civil partnership’ to a specific person however, it would need to be made clear that the Will should not be revoked upon this union. But is this bulletproof?

The dangers of automatic revocation of a Will

Circumstances can change quickly, relationships can break down, and when this happens, changing your Will may not be on the top of your priority list. However, the ramifications of not updating your Will at this point is that the exception will not apply and the Will is revoked by any subsequent marriage to another person.

The danger of revocation is that the whole Will is revoked, which could mean that children, grandchildren and other beneficiaries will not receive their inheritance. Regardless of the breakdown of the marriage, the assumption is that these would not be the testator’s wishes.

The Law Commission report recommends abolishing this rule. This is primarily designed to address the concerns of predatory marriages. This is where vulnerable people, normally the elderly or those who lack the mental capacity to marry, are ‘befriended’ with the objective of marriage as a form of financial abuse.  As a result, the predatory spouse or partner would inherit under the intestacy rules.

The vulnerable testator may not realise the effect that any marriage or civil partnership will have on their Will or they may not be able to make another Will.  The level of mental capacity required to make a Will is higher than the level required to get married or form a civil partnership. A person could therefore fall victim to a predatory marriage but not be able to make a new Will. The only option to prevent the intestacy rules from applying in these circumstances would be for a statutory Will to be made by the Court of Protection.

The Law commission believes that by abolishing this rule, it will offer a layer of protection for vulnerable people at risk.

This recommendation is a significant success for campaigners of predatory marriages, such as Daphne Franks. As part of the consultation, The Society of Trust and Estate Practitioners (STEP) proposed enhanced capacity assessments and better training for registrars to help recognise and help prevent predatory marriages.  However, is this enough?

What are the likely implications of this recommendation?

At first instance, this recommendation seems indisputable. Few would dispute the importance of protecting vulnerable people from exploitation.

However, the question remains as to how this reform may affect the majority of people who are not ill-intentioned in their marriage or civil partnership. What standing does a widow or widower have within a new marriage, where the deceased has not executed an updated Will to provide for them?

As with most progressions within the law, there are opposing arguments. According to a Law Society survey, there is an even split within the legal profession regarding this recommendation. The concern is that this reform may lead to increased inheritance disputes and litigation. The unwelcomed burden would be on the widow or widower to claim their entitlement under the Inheritance (Provision for Family and Dependants) Act 1975 (“1975 Act”).

The Law Commission however, does not think that spouses and civil partners need the protection of revocation due to their existing right to make a claim for reasonable financial provision from the estate under the 1975 Act.

Under the 1975 Act, spouses and civil partners are afforded the most protection.  Whilst other family members and dependants may be able to make a claim against the estate they must prove that financial provision is necessary for their maintenance. By contrast, spouses and civil partners are not required to prove this.

However,  a successful outcome is not guaranteed. A widow or widower could be left disadvantaged at the end of an extensive process, despite investing time and money into the marriage or civil partnership.

There are many questions left unanswered, examples of which include, “what if the previous marriage or civil partnership was the predatory one?” and  “would the widow/widower have the mental capacity to make a claim via the 1975 Act?” These such questions along with the Law Commission’s recommendations need to be thoroughly examined, and any potential risks and consequences will need to be considered carefully.

After almost 200 years, it would be no sacrifice for the Government to take the time needed to make sure reforms to such an important area of law are truly robust.

How can Redkite help you?

If you or a loved one wish to discuss making a Will and require our help or guidance, then please get in contact with our leading team of experts here at Redkite Solicitors.

Our friendly team of experts in our Wills and Probate Department are here to help and support you at every step of the way.

This article was written by Redkite Solicitors, Sian Jones. To find out more about Sian and the support she and her team can offer you, please visit her website profile here: /team/sian-jones/.