In a world where wealth is growing, diversifying and transferring faster than ever, estate planning for high-net-worths must evolve to safeguard wealth and legacy, top estate lawyers tell Spear’s.
Wills law remains firmly in the past, with Victorian-era legislation still dictating estate planning, meaning even the most well-planned estates can be subject to disputes.
Recent Law Commission recommendations seek to overhaul what some legal minds believe is archaic wills law to bring clarity, fairness and modernity, ensuring it ‘reflects the realities of today’s society’.
The proposals are designed to address issues such as testamentary capacity, formal requirements for wills and protection against fraud, Daniel Edwards, partner, Browne Jacobson tells Spear’s.
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The yet-to-be adopted proposals come at a time of an unprecedented intergenerational transfer of wealth. In the UK alone, an estimated £1.2 trillion will pass from baby boomers to younger generations over the next decade. The huge sums of money being passed down through generations make early estate planning increasingly vital, particularly for families with complex assets, cross-border footprints or non-traditional family structures who may be more vulnerable to disputes.
While the Law Commission’s proposals spotlight concerns over current will law, reforms are unlikely to be brought in for some time, despite positive overtones from the government. In the meantime, trust and estate lawyers tell Spear’s why change is needed and how, as wills law stands, to ensure a smoother transition.
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What do the reforms propose?
‘One of the key reforms under consideration is giving courts discretion to validate informal documents as wills when there is clear evidence of the individual’s testamentary intention,’ Naomi O’Higgins, head of trusts and estates disputes at Howard Kennedy, and a Spear’s Top Recommended contentious trust lawyer, says.
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‘This offers a valuable safety net for people who have genuinely tried to record their wishes but failed to meet formal legal requirements.’
Legal experts tell Spear’s that they particularly welcomed the recommendation to clarify the confusion and uncertainty about whether someone has the mental capacity necessary to make a will.
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At the moment, there are two slightly conflicting tests set out by the Banks v Goodfellow case in 1870 and the Mental Capacity Act 2005. The proposals would align testamentary capacity to the legal standard with the more modern and functional approach of the Mental Capacity Act 2005. Sangita Manek, a will, trust & dispute partner at Irwin Mitchell, describes this recommendation as ‘one of the most significant proposed changes’.
The proposals would also allow for greater flexibility for the signing and witnessing of a will. This would widen ‘the scope for rectifying mistakes made in a will, should prove helpful in “homemade” wills or those made by others who are less experienced in the area,’ Edwards says.
The law that means marriage revokes a will would also be abolished.
Manek says: ‘Many people are unaware of this rule and fail to update their wills after marriage, particularly in later-life or second marriages, despite having no intention to change their testamentary wishes.
‘In such cases, the new spouse can still seek provision under the Inheritance (Provision for Family and Dependants) Act 1975, ensuring a fair balance of interests.’
Courts will also be given discretion to validate informal documents as wills when there is clear evidence of the individual’s testamentary intention.
Judges would also be given powers to infer undue influence based on circumstantial rather than direct evidence.
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Lowering the age
The untimely death of singer Liam Payne, who died without a will, served to highlight that estate planning should not be reserved for older generations.
One of the most significant proposals by the Law Commission is for the will-making age to be lowered from 18 to 16.
‘While most 16- and 17-year-olds won’t have enough assets to justify estate planning, there’s a growing segment of young people, social media influencers, esports stars, tech entrepreneurs, who are accumulating wealth early in life,’ Brendan Udokoro, associate, Howard Kennedy, tells Spear’s.
‘Though the reform is not sweeping, it recognises the changing financial landscape where young people are entering the wealth space earlier. It encourages early engagement with estate planning, promotes financial literacy, and should be welcomed as a step in the right direction,’ he adds.
As O’Higgins notes, interstate rules ‘rarely reflect the realities of modern families’.
‘Unmarried partners may inherit nothing, and stepchildren who were not legally adopted may be excluded altogether,’ O’Higgins says.
‘Having a will ensures your intentions are respected and your loved ones are protected. We see firsthand the emotional and financial turmoil that follows when someone dies intestate. Disputes among family members become more likely, especially when there are competing claims and no clear instructions,’ she adds.
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Will the reforms bring clarity?
The Law Commission’s proposed reforms to modernise the laws around wills may bring both opportunities but there could also be risks.
O’Higgins suggests that while validating an informal document brings ‘testamentary freedom’, she warns it could also lead to uncertainty.
‘Questions may arise about whether a document was a final will, merely a draft, or just an expression of wishes, potentially inviting litigation over authenticity and intent,’ she says.
The recommendation is that such discretion should only be exercised in exceptional cases and assessed on a case-by-case basis.
The ability to infer undue influence based on circumstantial evidence is designed to better protect vulnerable individuals, but, O’Higgins says, it could also increase ‘litigation, costs and uncertainty’.
‘Overall, the success of these reforms will hinge on how carefully they are implemented and the judicial guidance that accompanies them,’ she adds.
Avoiding will disputes and planning early
The Law Commission’s recommendations are unlikely to be implemented soon, but there are tools beyond traditional wills that ultra-high net worth individuals consider to ensure long-term control and clarity of their legacy.
Udokoro says a strategic and multi-layered approach to succession planning is crucial.
‘These require a Trusts, particularly discretionary trusts, remain central to most estate plans. They offer flexibility, control, and privacy. Trusts allow for gradual distributions, protection from external claims, and a smooth intergenerational transfer of wealth. They can also be tailored for tax efficiency or asset protection.
‘Family constitutions—though not legally binding—are growing in popularity, especially among families with shared businesses or investments. These documents articulate the family’s values, governance principles, and expectations for future generations. They serve as a stabilising framework for decision-making.
‘Letters of wishes, while non-binding, often carry significant weight with trustees and executors. They are particularly helpful in complex family dynamics or blended families and provide valuable insight into the testator’s intentions.’
