Looking back on the updates from the Law Commissioner on the Wills Act 1837 (Act), this mini-series looks to cover the most important elements that will affect the average person.
To give a brief recap of the Law Commissioner’s update, this research has been ongoing since 2016, with a slight pause in 2019. In 2023, the Law Commissioner published their Supplementary Consultation Paper, which focused on two main issues:
- Electronic Wills; and
- The rule that a marriage/civil partnership revokes an existing Will.
On 16 May 2025, they published their report, Modernising Wills Law, which contained two volumes:
(1) recommendations for reform; and
(2) contains their draft Bill for a new Wills Act that would give effect to their recommendations for legislative reform, which is accompanied with explanatory notes.
Their final report, Modernising Wills Law, is aimed primarily at supporting testamentary freedom, protecting testators (including undue influence and fraud), and increasing clarity and certainty in the law where possible.
In this blog, I will be focusing on Chapter 5, Formality and Requirements. Please note that my previous blog focuses on Chapter 2, Capacity. If this is of interest to you, it can be read here.
Formality and Requirements
As we know, the current formalities for making a Will are governed by section 9 of the Act. This is applicable to all Wills, with the exception of soldiers in actual military service, including naval or marine forces. As a quick recap, these formalities state that no Will shall be valid unless:
- It is in writing, signed by the Testator, or by some other person in his presence and by his direction;
- The Testator intended by his signature to give effect to the Will; and
- The signature is made in the presence of two or more witnesses; and
- Each witness either:
Attests and signs the will; or
Acknowledges his signature,
in the presence of the Testator (but not necessarily in the presence of any other witness).
In other words, to have an effective, legal Will, it needs to be in writing, signed by the Testator, in the presence of two witnesses. The Law Commissioner looked into the extent to which the formality requirements might deter or act as a barrier to Will-making. They concluded that it would not be appropriate to recommend overarching or fundamental changes to the formality requirements. As a result, the current law’s formality requirements will need to be reserved in the new Wills Act.
They considered 4 specific aspects of the current formality requirements:
1. Attestation requirement – they recommended that this be preserved, stating, “We have concluded that the requirement for witnesses to attest should not be removed. The requirement that witnesses attest contributes to the important protective function that witnesses serve. We would be very hesitant to make any changes to the formality requirements that would undermine this protective function…”;
2. Provision for privileged Wills (for the armed forces) is retained, but the scope for the privilege is modified. They state: “We think that privileged Wills should be retained. We understand that the privilege to make a will without needing to comply with any formalities is unusual. However, it continues to serve an important function for limited categories of people – primarily for those in the Armed Forces…”;
3. Holographic Wills – (Wills written and signed in the testator’s own hand but largely not complying with the formalities of the Wills Act) and recommended that no special provision is made to recognise them as a particular class of Will. They state: “We continue to consider that Holograph wills should not be recognised as a particular class of Will in England and Wales. Holograph wills appear to work well in other jurisdictions. However, most of those jurisdictions have forced heirship as part of their law, meaning that the context is significantly different…”;
4. Finally, consider the compulsory registration of Wills, but do not recommend that registration should be required stating: “… we recommend that the requirement in section 9 for witnesses to attest when they sign the will in the presence of the testator should: (1) be retained in a new Wills Act; and (2) apply when witnesses acknowledge their signature in the presence of the testator”.
Overall, it is the Law Commissioner’s aim to encourage people of all wealth levels to make a Will, so therefore wants to ensure that it is simple for people to do so. They wish to encourage Testators to write and execute a Will and be confident it is valid.
Understanding formalities is important when making a Will because if you wish to challenge a Will after someone has passed away, this is the first thing that we will look at – is the Will valid; does it comply with the formalities? If it does appear that way on the face of it, there are other avenues we can explore and look down when challenging a Will, but ensuring that the Will is validly executed at least is a good starting point for ensuring that your wishes on death are complied with.
How can we help?
Sophie Wilson is an Associate in our Dispute Resolution team.
If you have any queries relating to the above subject, please contact Sophie or another member of our team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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