WillsAn Overview of the Law Commission’s Final Report on Wills – Part One

On Friday 16 May 2025, the Law Commission published their final report ‘Modernising Wills Law’. The report is the conclusion of an almost decade long project examining areas where the law governing wills may require reform. The initial consultation was published in June 2017, followed by a consultation period. The project was paused in 2019 and later resumed with a supplementary consultation paper published in October 2023, focusing on certain issues where the Law Commission believed views may have changed since 2017

The Final Report contains a range of different recommendations on where the law on wills should, and should not, be updated. It also includes a draft Bill for a new Wills Act. This article is the first in a series that will explore all those recommendations in detail, and mainly covers the recommendations relating to testamentary capacity.

It is important to note that these are currently only recommendations. They do not yet constitute changes to the law. There is no guarantee that the government will adopt the draft Bill, and if so that it will pass through Parliament in its current form without amendments.

The Term “Testator”

In the 2017 Consultation Paper, the Law Commission considered whether the term “testator” should be replaced with a less technical term. The majority of consultees disagreed. As a result, the Law Commission have retained the term “testator” for the draft Bill, but it has been utilised as a gender-neutral term, avoiding the term “testatrix” which in the past has been used for female testators.

Capacity Test

The current test for whether a testator has testamentary capacity arises from the case of Banks v Goodfellow (1870) LR 5 QB 549. The statutory test for capacity from the Mental Capacity Act 2005 (MCA) does however apply when the Court of Protection assesses whether it can make a statutory will on a person’s behalf. This different in tests can lead to inconsistent outcomes where the testator is on the margins of capacity.

In the 2017 Consultation Paper, the Law Commission proposed the adoption of the MCA test for testamentary capacity, a position it continues to hold. The majority of responses were supportive of this, and the Law Commission suggest this will lead to a more consistent and cohesive approach. Medical professionals are also more familiar with the MCA test which will make the situation clearer for those who assess capacity in a variety of contexts.

Although the Law Commission recommends adopting the MCA test, they still believe the rich case law on the Banks v Goodfellow test will continue to be relevant, and therefore suggest that the limbs of the Banks v Goodfellow test be outlined in the MCA Code of Practice to provide detail on the relevant information that is necessary for a person to have testamentary capacity and also explain and direct to the existing case law.

Presumption of Capacity

The Law Commission also recommend that the statutory presumption of capacity in the MCA should apply to testamentary assessments. They do note that this is unlikely to have significant changes, as under the current common law position where a formally valid and rational looking will gives rise to an evidential presumption of capacity.

Importantly, the Law Commission emphasises that this should not weaken the duty of a will writer to ensure the testator has capacity as the MCA Code of Practice does note that the presumption of capacity should not be used as a reason for not assessing capacity and there should always be a proper assessment where doubts on capacity exist.

Rule in Parker v Felgate

As a general rule, a person must have testamentary capacity at the time they execute their will. There is however an exception to this rule in the case of Parker v Felgate (1883) 8 PD 171 where a person has testamentary capacity at the time of giving instructions for their will but lose it before they execute their will. The rule allows the will to be valid in certain circumstances.

The Law Commission believes this rule should be retained as it provides a practical solution that avoids the need for a statutory will. Although it loses the opportunity for a testator to change their minds, the Law Commission believes it strikes the right balance between protecting testamentary freedom and providing safeguards.

This recommendation is included despite the Law Commissions separate recommendation of a dispensing power (to be discussed in a later article). Although the dispensing power could achieve similar outcomes, they believe relying solely on it would be more complex and less effective in some cases.

Assessing Capacity

Under the Golden Rule of testamentary capacity, a medical assessment should be sought for a testator who is elderly or suffering from a serious illness. While this is best practice rather than law, it can be helpful where there are disputes over capacity after death.

In the 2017 Consultation, the Law Commission believed the Golden Rule was not adequate to answer the question of when testamentary capacity should be assessed and by who. They argued the rule assumes capacity is best assessed by a lawyer or doctor, which may not always be true. It also risks unfairly targeting elderly testators. The Law Commission at the time proposed a new code of practice to provide more nuanced and practical guidance and sought views on its content.

Following consultation responses, the Law Commission do believe that there is value in a code of practice directed at, and considered by, anyone preparing a will or providing an assessment of capacity in their professional capacity. While non-compliance would not carry legal consequences, it could be relevant in any professional negligence or professional conduct proceedings.

The content of the code will be determined by the Lord Chancellor if the recommendation is adopted. However, the Law Commission suggests it should include guidance on:

1. When capacity should be formally assessed or investigated
2. Who should assess capacity
3. How capacity should be formally assessed
4. How solicitors and will writers should instruct third parties to assess capacity
5. How records should be made and kept
6. How long a formal assessment should take

WillPack’s Opinion and Conclusion

WillPack welcome the proposals on testamentary capacity. We agree that aligning the testamentary capacity test with the MCA test will lead to more consistency and clarity.  In particular, we support the introduction of a new code of practice, which could provide valuable guidance for professionals involved in assessing capacity.

Keep an eye out in the coming weeks for the next article in this series where we will explore more of the Law Commission’s recommendations.

 

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Photo by Kate Krivanec on Unsplash