Invalid wills: Law Commission proposals for reform

As private client lawyers, we’ve all seen the sharp end of formalities. A Will fails because the second witness was in the next room. A draft that perfectly captures the deceased’s wishes is ignored because it wasn’t signed in time. Under current English law, such documents are simply invalid. The courts cannot save them, even if the evidence of intent is overwhelming.

But this may be about to change. The Law Commission has recommended introducing a dispensing power that would allow courts in England and Wales to validate Wills that don’t comply with the formal rules, provided there is clear evidence the deceased intended the document to be their will. If enacted, it would bring our law into line with longstanding reforms in Australia, New Zealand, Canada and parts of the US.

What exactly are dispensing powers, how do they work in other jurisdictions, and should we be cautious or optimistic about the Law Commission’s proposals?

What Are Dispensing Powers?

Dispensing powers, also known as “harmless error” rules, allow courts to admit a document to probate even if it doesn’t meet all formal requirements, such as being witnessed or signed, so long as the court is satisfied the deceased intended it to be their Will. In short, they allow substance to prevail over form.

The Global Picture: How Other Countries Handle Informal Wills

Australia was one of the first common law jurisdictions to embrace dispensing powers. Every state and territory now permit courts to validate documents, including electronic notes, text messages, and video recordings, where testamentary intent is proven. Courts have admitted unsent text messages and DVD recordings as valid wills.

New Zealand’s Wills Act 2007 follows a similar model. The High Court can validate any document that reflects the deceased’s final testamentary wishes. The emphasis is on whether the document was intended to operate as a will at the time of death.

Canada also allows courts in most provinces to admit informal Wills. For example, British Columbia’s courts have validated unsigned Word documents saved on a deceased’s computer. Ontario, previously a hold-out, introduced a dispensing power in 2022. The courts must be satisfied that the document was a “deliberate and final expression” of intent.

In the United States, the position varies by state. Around a dozen states have adopted the Uniform Probate Code’s “harmless error” provision, which allows non-compliant Wills to be admitted if there is clear and convincing evidence of the testator’s intent. Courts have probated Wills written on tablets and signed with a stylus.

Across all these jurisdictions, the same principle applies, intent is king. If the evidence shows the deceased meant the document to be their will, the courts will do what they can to give it effect, even if formality was lacking.

England’s Position: Strict Compliance, No Exceptions

In England and Wales, the law remains rigid. Under the Wills Act 1837, a Will must be in writing, signed by the Testator, and witnessed by two people present at the same time. There is no discretion to overlook formal defects. Even minor technical failures, like a missing witness signature, render the Will invalid.

This can lead to unjust outcomes. The Law Commission cites cases where clear and final expressions of testamentary intent were disregarded simply due to procedural missteps.

The Law Commission’s Proposal: A Controlled Safety Net

The Law Commission’s recommendation is for a statutory dispensing power that would allow the courts to recognise a document as a valid Will where:

• There is a document or record, including electronic files, videos, or audio.

• The court is satisfied the deceased intended it to be their Will.

• There is no evidence, the deceased changed their mind before death.

This is not about weakening the importance of formal Wills. The Commission is clear, formal compliance remains the gold standard. The dispensing power is a safety net, not a shortcut.

Safeguards would include a high evidential threshold, likely equivalent to “clear and convincing evidence,” and judicial discretion to exclude documents where there is doubt about authenticity or finality.

Why This Matters for Private Client Lawyers

If adopted, the dispensing power could make our work both more complex and more equitable. Clients who have made informal wills, particularly in emergencies or digitally, may still be protected. But the evidential burden will be high, and litigation risk could increase in borderline cases.

Practitioners should continue to emphasise formal compliance. But we should also be alive to opportunities to rescue imperfect wills that truly reflect the Testator’s intentions. This is especially relevant in a world of smartphones, remote instructions, and increasing DIY estate planning.

Conclusion: A Reform Whose Time Has Come

The Law Commission’s proposals are not radical. They reflect what has worked elsewhere for decades. By introducing a carefully limited dispensing power, England and Wales can align with international best practice and better respect testamentary freedom, without undermining the safeguards that protect against fraud and undue influence.

In a system where justice so often hinges on technical compliance, this reform offers a long-overdue rebalancing in favour of common sense and fairness.

How Can Forbes Help You

With our deep understanding of the legal complexities surrounding contested wills, we are well-equipped to assist you in navigating will disputes. Our expertise includes addressing concerns about testamentary capacity and undue influence, and ensuring timely, comprehensive responses to legal queries. Whether you are an executor, beneficiary, or legal professional, we can provide strategic guidance to protect your interests and help resolve contentious probate matters efficiently. For more information or to discuss your case, contact our Contentious Probate and Trusts division.