The Law Commissioner’s update to the Wills Act 1837 – Protecting Testators

Part 4 of this mini-series looks at the updates from the Law Commission on the Wills Act 1837 (Act). In this blog, we are looking at the updates regarding protecting testators with regard to (1) undue influence and (2) knowledge and approval.

By way of a brief recap, the update from the Law Commissioner 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:

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.

In this blog, I will be focusing on chapter 9: Protecting testators: Undue Influence and Knowledge and Approval.

Testamentary freedom is central to the law on wills and is supported by the requirements that go to the validity of a Will, including the requirement for testamentary capacity and the formality requirements (please see earlier blogs for more information in this regard).

In this blog, we will be focusing on two further means by which the law protects testamentary freedom: the requirement for knowledge and approval and the doctrine of testamentary undue influence – both of which play an important role in protecting testators, particularly those vulnerable from financial abuse.

To explain briefly, the requirement for ‘Knowledge and Approval’ operates to ensure that the will reflects the actual and true intentions of the person executing the will, and whether or not that personal understand the Wills contents and the effect that this may have on others. ‘Undue Influence’ is where a testator has had some unlawful pressure placed upon them to make or change a Will, which is not a true representation of their wishes. It also looks at whether a transaction was brought about by the exercise of undue influence, which is a question of fact. Even though Undue Influence is a single doctrine, a finding of equitable undue influence can be “actual” or “presumed”. These two topics are considered together, because they have often been claimed in the same circumstances when someone challenges a Will – it either did not reflect the true intentions of the testator, or there was a close involvement of a beneficiary which raises questions as to whether or not the testator knew what they were doing, or the effect that this will have.

The Law Commissioner looks to make recommendations in relation to both testamentary undue influence and knowledge and approval to seek to ensure these doctrines properly support testamentary freedom by protecting those making a will from financial abuse. However, the recommendations also reflect the important balance that the law must adhere to. On the one hand, the law must provide adequate protection to those most vulnerable by ensuring that Wills that do not reflect the true wishes can be effectively challenged, and on the other hand, the law must not encourage speculative or spurious claims by disappointed beneficiaries, including when the Will does not match the social norms or expectations (e.g. a parent not leaving anything to their child/children).

A recommendation was made to enable the court to infer undue influence in respect of the will as a whole or of any disposition in the will. This can be done when there are reasonable grounds to suspect undue influence, so they can consider evidence about relationships of influence between the testator and the person accused of exerting influence over them. This recommendation seeks to address the difficulty under the current law of proving undue influence by allowing the Court to make an inference and ensure that financial abuse does not go undetected and unaddressed.

There is also a recommendation that the new Wills Act should place on a statutory footing the common law requirement of knowledge and approval. This seeks to ensure that the requirement for knowledge and approval plays its proper role in ensuring the testator intended to make the will in the terms they did, while also preventing the requirement from being used as an indirect or roundabout way of alleging undue influence. They also recommend that the rule in Parker v Felgate should be retained in respect of the requirement of knowledge and approval.

With the above, and as is common practice, costs are awarded at the discretion of the Court, with the general rule being that the loser pays the winner’s costs. However, there are some exceptions; for example, costs will likely be paid out of the estate where (1) litigation has been caused by the conduct of the testator or the principal beneficiaries, or (2) circumstances lead reasonably to an investigation of the matter.

There is a recommendation that the Court should be able to infer that a will was made as a result of undue influence where there are reasonable rounds to suspect undue influence, considering the conduct of the person claimed to have exerted undue influence in relation to the will, where there was a relationship of influence between that person and the testator and the circumstances in which the will was made.

Finally, there is a recommendation that the requirement that the testator has knowledge and approval of the contents of their will should require that the testator understands that they were making a will and the content and effect of their will. They also recommend that the rule in Parker v Felgate applies to knowledge and approval should be retained.