UK Will reforms & litigation

Charisse Crawford of Trowers & Hamlins explores the impact of new developments on UAE residents with British assets, and the challenges of modernising inheritance law in England and Wales.

It is not uncommon for assets owned in England and Wales by UK non-domiciles to pass in accordance with the UK’s statutory intestacy rules rather than the deceased’s local laws on death in certain circumstances. This can result in assets passing to unintended beneficiaries or certain beneficiaries receiving more than the deceased wished.

It is possible to combat this risk by making a valid Will recognised in England and Wales. However, any Will which does not comply with the strict statutory requirements in the UK, will not constitute a valid document and consequently will be rendered invalid resulting in the application of the intestacy rules in certain circumstances. It has long been felt that the statutory requirements to make a Valid Will in England and Wales do not reflect the UK’s modern society nor appreciate the international asset ownership within that jurisdiction. In a bid to modernise the law surrounding Wills, the UK’s Law Commission has made various recommendations to combat these concerns.

This has prompted the question whether the Law Commission’s report and its proposals will assist the Courts in England and Wales being more open to consider evidence outlining how the deceased wished for their estate to be divided even if they failed to make a Will which complies with the strict statutory requirements or whether the proposals will merely result in greater litigation attempting to clarify what documents the Court will and won’t accept as evidence of the deceased’s testamentary wishes.

Many international individuals who own property in England or Wales either fail to make a Will capable of recognition in England and Wales or simply do not appreciate that due to the nature of the assets owned by them in that jurisdiction that it is possible the UK intestacy rules could apply resulting in potentially unintended consequences.

In England and Wales, the rule of testamentary freedom applies. This means that provided an individual makes a valid Will outlining their testamentary wishes, their assets in England and Wales will pass in accordance with the terms of that Will, where appropriate. If an individual fails to make a valid Will, then the statutory intestacy rules apply and will govern the distribution of certain assets. These rules provide for the estate to be divided and distributed to the deceased’s family members depending on the nature of the deceased’s surviving family members and the size of the Estate. For example, if the deceased was survived by a spouse and children, then the intestacy rules will favour the spouse followed by making equal distributions to each of the children. If the structure of the deceased’s surviving family is different, then different family members are favoured by the intestacy rules. The important point to note where the intestacy rules apply, is that there is no flexibility in the application of them unless all beneficiaries agree otherwise. This is why the intestacy rules can result in unforeseen and unintended consequences.

The application of the intestacy laws of  England and Wales  to UK situated assets depends on the domicile of the deceased.

To explain, international law distinguishes between immoveable assets and moveable assets. Typically, succession to immovables, such as property, is governed by the jurisdiction in which that asset is situated and succession to the moveable assets, such as cash and company shares, are governed by the deceased’s local laws as appropriate. These laws can result in differing succession laws applying to different assets. Any person owning UK assets may prepare a valid UK Will that will be admitted into probate in the UK if it has been prepared in accordance with the laws of England and Wales.  However, if a valid Will is prepared covering the distribution of moveable assets, these provisions may conflict with the governing law of the deceased’s home jurisdiction, which may for example have a forced heirship regime.  In those circumstances, whilst the Will is valid and provides authority to the administrators of the estate, the provisions are liable to challenge by an heir who would have otherwise received a greater benefit under the governing law.

To make a valid Will governing the distribution of assets held by the deceased in England and Wales, it must comply with certain statutory requirements including the document must be in writing, signed by the person owning the assets, that signature must have intended to create a Will and the document witnessed and attested by two witnesses. Any failure to comply with any of the strict statutory requirements as outlined in the Wills Act renders the Will invalid resulting in the intestacy rules applying.

If you wish for all your assets held in England and Wales to pass to certain individuals in specific proportions rather than being dictated by the intestacy rules, then a valid Will must be prepared in accordance with our strict statutory principles governing the distribution of the immoveable assets in that jurisdiction at the very least. However, even if you take this step, it is important to note that even if a valid English and Welsh Will purports to gift all assets in this jurisdiction, these testamentary wishes could fail where they relate to moveable assets in favour of the non-domicile’s forced heirship laws.

As outlined above, the current law in England and Wales requiring a Will to comply with strict statutory requirements failing which the intestacy rules may apply, can result in some unexpected and unintended outcomes that can cause significant stress, time delay and costs during a highly emotional time.

It is considered by many that the legislation which governs the creation of valid Wills in England and Wales is archaic and is simply not fit for a modern international society. Consequently, the UK’s Law Commission completed its report regarding modernising Wills in May 2025 setting out its proposed reforms to make the law fit for purpose.

One of the proposed reforms makes provision for the English and Welsh Courts to have a dispensing power. Ultimately, this may allow the Court to recognise documents outlining the deceased’s wishes that don’t conform with the proper formalities to create a valid Will under current legislation.

The Law Commission’s report confirms this dispensing power could adopt one of two forms:

1. Substantial compliance doctrine;
2. Intention based power.

The substantial compliance doctrine is not a new concept and has been introduced in other jurisdictions for some time such as Queensland, Australia.  It is believed Queensland introduced a substantial compliance approach in the early 1980s. This was believed to be based on a principle taken from contract law where to all intents and purposes, if a document is a Will save for complying with the proper formalities, the Court may consider it as such.

The intention-based power is proposed to allow the Court to recognise a Will to be a valid document despite its non-compliance with the current statutory requirements in England and Wales, where the Court is satisfied to do so will give effect to the deceased’s intentions.

Across England and Wales practitioners are considering whether the proposed reforms will assist in opening the Courts to recognising documents that do not confirm with the current statutory requirements or whether the proposals will result in greater litigation. The Law Commission have commented that similar dispensing powers are successfully operating across the world including in Canada, Australia and New Zealand and has not resulted in an increase in litigation.

Australia has implemented a dispensing or probate power enabling the Court to have discretion to recognise a document to be a Will even if it does not comply with the proper formalities for some time. It is understood this concept was introduced across the Australian states from the mid-seventies to the late 1990s. Similarly, Canada was also quick to implement a dispensing power across its states from the early 1980s to 2010. Equally in or around 2007, New Zealand introduced the New Wills Act allowing the High Court to admit a document to probate which clearly expressed the intentions of the deceased.

It could be argued considering the above that England and Wales are behind the curve when it comes to implementing a dispensing power. Conversely, it could be said the current legislation regulating the creation of Wills has been in place in England and Wales for nearly 200 years and provides a certainty and clarity as to the position on death.

Despite this, it appears from the English and Welsh practitioner’s perspective and as acknowledged in the Law Commission’s summary report, the proposals of a dispensing power will introduce some uncertainty into this area of law as the scope and application of the power is developed by the Courts in case law.

Perhaps one of the most uncertain factors of the proposed dispensing power is the consideration of what will constitute a document capable of being treated as a Will yet fails to comply with the proper formalities.

In the Law Commission’s report, they summarise the dispensing power as being a power that should be introduced in England and Wales to dispense with the formal requirement for a Will which would include the following:

• A power to be exercised by the Court only;
• It will apply to records demonstrating testamentary intention which includes electronic documents as well as sound and video recordings;
• It will be possible to allow records that pre-date the introduction of the power to be recognised;
• The Courts will be able to determine conclusively the date and place at which the record was made.

One of the main uncertainties which surround the proposed introduction of the dispensing power relates to the interpretation of what constitutes a document or as outlined above a record. These uncertainties and concerns particularly centre around video recordings and electronic documents such as text messages or iPhone notes. There are various cases particularly in Australia which have considered these issues. Towards the end of 2024, the Australian Courts considered whether an iPhone note could be construed as a Will. On this occasion the Australian Court determined it could not. Therefore, it does appear that if a dispensing power is introduced in England and Wales, there will be a period, as anticipated by the Law Commission where the nature and extent of the documents the Courts are prepared to accept evidencing the deceased’s testamentary intentions will need to be developed.

From an international perspective, it is not uncommon for a UK non-domicile to own assets in England and Wales but perhaps not appreciate that some or all of those assets, depending on the nature of them, may pass under the statutory intestacy rules rather than being distributed to the deceased’s intended or hopeful heirs. The question then arises whether the dispensing power as proposed by the Law Commission will provide some comfort to international asset owners in England and Wales where such comfort is not provided under the current laws.

On balance, whether the proposed dispensing power, if enacted, opens up the English and Welsh Courts to recognise documents which do not conform with the current statutory requirements to create a valid Will and whether such a power will provide comfort to international asset owners in England and Wales that it will be possible for their assets to be distributed in accordance with their testamentary wishes even if they have not made a valid Will, depends on the nature of the new legislation enacted and whether the evidential burden is pitched at the correct level. If the evidential burden to prove the testator’s intentions under the intention-based power is too high, then it is unlikely the dispensing power will prove useful as few cases may achieve the statutory requirements to give effect to the document. If, however, the evidential power is pitched at the appropriate level to protect against abuse of the rule but low enough to enable a sufficient number of successful cases, then it could be of some use.

If you own assets in England and Wales and ultimately wish to ensure that they pass to certain individuals then you should seek the requisite advice and make a valid Will in accordance with the current statutory requirements, if so advised.

Text by:

Charisse Crawford, partner, Trowers & Hamlins