Almost two centuries after the Wills Act 1837 received Royal Assent, the rules for making a valid will in England and Wales still turn on ink, paper and two witnesses standing in the same room. That may be about to change. In May 2025, the Law Commission published Modernising Wills Law, a two-volume report with a complete draft Bill that would sweep away the Victorian statute and open the door to electronic wills. The government has welcomed the report but has not yet acted on it, which leaves testators in a peculiar position: the direction of travel is clear, yet the old formalities remain binding in full. This guide explains what the current law demands, what the reform proposals would alter, and why waiting for Parliament is the one strategy that makes no sense.
What counts as a valid will in England and Wales
A will is only worth the protection it gives, and that protection depends entirely on formal validity. Under the current law, a valid will must satisfy four cumulative conditions. The testator must be at least 18 years old, save for narrow exceptions covering members of the armed forces on active service. The testator must have testamentary capacity, assessed under the common law test in Banks v Goodfellow (1870): understanding the nature of the act, the extent of the estate, and the claims of those who might expect to benefit. The testator must know and approve the contents of the document. And the will must comply with the strict execution formalities described below.
Miss any one of these and the document fails in its entirety. There is no partial rescue, no sliding scale, no discretion for the probate registry to wave through a will that "almost" complies. The estate then passes under the intestacy rules, which fix the order of beneficiaries by statute and routinely produce outcomes the deceased never wanted. Unmarried partners receive nothing under intestacy, stepchildren receive nothing, and a separated but undivorced spouse can inherit the lot. That severity is precisely what makes the formalities worth taking seriously, and it explains why the Law Commission spent nearly a decade examining whether they still serve their purpose. The full catalogue of personal legal documents for England and Wales on Captain.Legal is built around those same statutory requirements.
Legal framework: the Wills Act 1837 still governs
The governing statute remains the Wills Act 1837, and its section 9 sets out the execution formalities in force today. The will must be in writing. It must be signed by the testator, or by someone else in the testator's presence and at their direction. The signature must be made or acknowledged in the presence of two witnesses present at the same time, and each witness must then attest and sign in the presence of the testator. Section 15 adds a trap that catches families every year: a gift to an attesting witness, or to that witness's spouse or civil partner, is void, even though the will itself remains valid. Section 18 provides that marriage or civil partnership automatically revokes an existing will unless it was expressly made in contemplation of that marriage.
One recent development deserves emphasis. The temporary rules introduced during the pandemic, which permitted witnessing by video link, applied only to wills made up to 31 January 2024. Remote witnessing is no longer available: both witnesses must once again be physically present with the testator. A will signed over a video call today is invalid, full stop. The consolidated text of the statute is available in the full text of the Wills Act 1837 on legislation.gov.uk, and reading section 9 takes two minutes that can save an estate from years of litigation.
What the Law Commission proposes to change
The report published on 16 May 2025, Modernising Wills Law (Law Com No 419), contains 31 recommendations and a draft Bill for an entirely new Wills Act. Several proposals would reshape daily practice. The headline reform is statutory recognition of electronic wills, valid only if created and stored on a "reliable system" capable of identifying the testator and witnesses, distinguishing the original from copies, and preventing unauthorised alteration. The technical standards would be defined later by regulations, after further consultation.
The Commission also recommends a judicial dispensing power, allowing a court to admit a document that fails the section 9 formalities where it clearly records the deceased's genuine testamentary intentions. Similar powers already operate in Australia, New Zealand and parts of Canada. The rule that marriage revokes a will would be abolished, largely to shut down so-called predatory marriages, in which a vulnerable person is married precisely so that intestacy displaces their existing will. The minimum age would drop from 18 to 16. Testamentary capacity would be assessed under the Mental Capacity Act 2005 rather than the Victorian case law, supported by a new code of practice. Courts would gain the power to infer undue influence where reasonable grounds exist, shifting the evidential burden onto the person defending the will. And the courts' rectification powers would extend to drafting errors where the language used simply fails to carry out the testator's instructions.
Why none of this changes what you should do now
Here is the part that headlines tend to bury: not a single one of these recommendations is law, and no Wills Bill has yet been introduced to Parliament. The Law Commission is an advisory body. The government gave a short interim response welcoming the report, with the responsible minister acknowledging that the current law is outdated, but the full response has been slow in coming and professional bodies, including the Law Society, have publicly pressed ministers over the lack of movement. Even once a Bill is introduced, it must pass both Houses, receive Royal Assent and then wait for commencement, with secondary legislation on "reliable systems" needed before any electronic will could be executed.
The practical consequences follow directly. An electronic will signed today is invalid, whatever software promises otherwise. A will revoked by your marriage last year stays revoked; the proposed abolition of section 18 has no retrospective magic. A homemade document with one witness instead of two cannot be saved by a dispensing power that does not yet exist. Anyone postponing a will "until the new rules arrive" is gambling their estate on a parliamentary timetable nobody can predict, and in the meantime the intestacy rules stand ready to distribute their assets by formula. The sensible reading of the reform news is the opposite one: the report is a reminder of how unforgiving the current formalities are, and an invitation to comply with them properly now.
Planning beyond the will itself
A will governs what happens after death, but a complete plan covers incapacity during life as well, and this is where many otherwise careful testators stop short. A property and financial affairs lasting power of attorney lets a trusted attorney manage bank accounts, bills and property if you lose capacity, under the framework of the Mental Capacity Act 2005 and subject to registration with the Office of the Public Guardian. Health decisions follow a separate track: an advance decision to refuse treatment records, in legally binding form, which medical interventions you refuse in defined circumstances, and it operates alongside rather than inside your will.
Business owners face an additional layer. Shares in a private company do not always pass freely under a will: pre-emption clauses, cross-option agreements and transmission provisions in the articles or in a shareholders' agreement compliant with the Companies Act 2006 can override or channel what the will says. In practice, the estates that unwind smoothly are those where the will, the company documents and any partnership arrangements were drafted to point in the same direction. Reviewing them together, rather than in isolation, is the single most effective piece of succession housekeeping a director can do.
Creating your will with Captain.Legal
Captain.Legal turns the section 9 requirements into a guided path rather than a legal obstacle course. You start from the last will and testament template for England and Wales and answer plain-language questions about your situation: whether you are married or in a civil partnership, whether you have children under 18 who need a guardianship clause, which specific gifts you want to make, and who takes the residue of the estate. The generator adapts the clauses to your answers, appoints your chosen executors with the powers they actually need, and inserts an attestation clause worded to evidence proper execution by two witnesses.
The document you download is drafted for the law of England and Wales as it stands, not for the reformed regime that may or may not arrive. That matters: a template built around anticipated electronic execution would be worthless today. You receive the will in Word and PDF, print it, and sign it in the physical presence of two adult witnesses who are neither beneficiaries nor married to beneficiaries. From first question to printable document, the process takes a matter of minutes, and you can return to regenerate an updated version whenever your circumstances change.
Mistakes that still invalidate wills in practice
The same handful of errors accounts for most contested estates, and none of them is exotic. The most common is defective witnessing: witnesses signing at different times, a witness who never actually saw the testator sign or acknowledge the signature, or, since the expiry of the pandemic rules, witnesses attending by video call in the mistaken belief that remote execution remains lawful. Close behind comes the section 15 trap, where the testator asks a beneficiary or the beneficiary's spouse to act as witness and silently voids that person's gift. Executors then discover the problem only at probate, when nothing can be done.
The second cluster involves events after execution. Marriage or civil partnership revokes the will under section 18, yet couples routinely assume an old will "carries over". Divorce does not revoke the will but treats the former spouse as having died, which can leave gaps in the gift-over provisions. Handwritten amendments scribbled onto the original after signing are ineffective unless separately executed, and stapling, unstapling or attaching documents to the will invites allegations of tampering. Finally, testators who never review the document allow it to drift out of alignment with the estate: property sold, businesses restructured, beneficiaries predeceased. A will is not a monument; treat it as a document with a review date.
Frequently asked questions
What makes a will legally valid in the UK right now?
For England and Wales, validity rests on the Wills Act 1837. The testator must be 18 or over, have testamentary capacity under Banks v Goodfellow, and know and approve the contents. The will must be in writing, signed by the testator, and the signature must be made or acknowledged before two witnesses present at the same time, each of whom then signs in the testator's presence. Scotland and Northern Ireland apply their own separate rules. None of the Law Commission's proposals has altered these requirements, so a will executed today must comply with the 1837 formalities in full.
Are electronic wills legal in England and Wales?
No. The Law Commission recommends that electronic wills become valid where they are made on a "reliable system", but that recommendation sits in a draft Bill that Parliament has not enacted, and the technical regulations defining a reliable system do not exist. Until both steps happen, a will signed electronically, stored purely as a digital file or witnessed over video is invalid. The safe course is unchanged: print the document, sign it in wet ink, and have two witnesses physically present sign immediately afterwards. Any provider suggesting otherwise is selling the future, not the law.
Will marriage still cancel my existing will?
Yes, for now. Section 18 of the Wills Act 1837 revokes a will automatically on marriage or civil partnership unless the will states it was made in contemplation of that specific union. The Law Commission recommends abolishing this rule, partly to combat predatory marriages targeting vulnerable people, but the change is not in force. If you married after signing your will, assume the will is revoked and make a new one promptly; otherwise the intestacy rules will govern your estate regardless of what the revoked document said.
In what format do I receive my will from Captain.Legal?
The completed will is delivered in Word and PDF. The PDF gives you a fixed, print-ready version for execution, while the Word file lets you adjust names, gifts or executor appointments before printing if something changes at the last moment. Remember that only the printed, signed and properly witnessed paper document has legal effect: the digital file is a convenience, not the will itself. Print at least one copy, execute it with your two witnesses, and store the signed original somewhere your executors can find it.
Is there a deadline for challenging a will or claiming from an estate?
The most important time limit concerns family provision claims. Under the Inheritance (Provision for Family and Dependants) Act 1975, a claim must generally be issued within six months of the grant of probate or letters of administration, and the court permits late claims only in limited circumstances. Challenges to validity itself, for instance on grounds of incapacity or undue influence, are not subject to that six-month bar, but delay weakens evidence and claims become harder once the estate is distributed. Executors often wait out the six-month window before distributing for exactly this reason.
Can I leave a gift to charity in my will?
Yes, and charitable legacies enjoy real tax advantages: gifts to registered charities are exempt from inheritance tax, and where at least 10 per cent of the net estate passes to charity, the rate on the remainder drops from 40 to 36 per cent. Name the charity precisely, include its registered number, and add a substitution clause in case it merges or winds up. Donors who already support causes during their lifetime through a Gift Aid declaration form often find a legacy the natural continuation of that giving.
Who can act as a witness to my will?
Any adult with capacity who is physically present can witness, but choose carefully. A beneficiary, or the spouse or civil partner of a beneficiary, loses their gift under section 15 if they witness, and the Law Commission proposes extending that disqualification to cohabitants. Executors may witness provided they take nothing under the will. In practice, two neighbours or colleagues with no interest in the estate are the cleanest choice. Both must watch you sign or acknowledge your signature, then sign themselves while you watch: sequential signing on different days breaks the chain and voids the will.
When will the new Wills Act actually take effect?
Nobody can say. The report and draft Bill were published on 16 May 2025, the government issued a brief interim response, and the full response and any Bill remain outstanding despite public pressure from the profession. Even after introduction, a Bill needs parliamentary passage, Royal Assent, commencement orders and, for electronic wills, further regulations on reliable systems. Realistically the current formalities will govern for some time yet, which is why the only rational plan is to execute a fully compliant will now and update it if and when the law changes.