Can Children Make Wills? A Look at Proposed Reforms to Wills Law

The Law Commission’s recent report on wills reform proposes several changes aimed at modernising an area of law still largely shaped by the Wills Act 1873. One particularly striking issue is whether children should be allowed to make Wills. At present, most cannot. But should that change?

Current Law:

Under section 7 of the Wills Act 1873, a person must be 18 or over to make a valid Will, unless their fall into one of the narrow exceptions:

• They are on active military service, or
• They are a mariner or seamen at sea.

These exceptions are based on historical circumstances and are rarely applicable to most young people today. As a result, no matter their personal circumstances, children die intestate meaning their estate is distributed under the rigid rules of intestacy.

This system works on assumptions and do not always hold. It assumes that minors have little to no property, are dependant on their parents, and lack the maturity to make testamentary decisions. But today, a child might:

• Inherit money or property from a grandparent
• Receive a compensation award
• Be financially independent
• Be estranged from one or both parents

Yet under current law, even if they express clear, precise wishes, those wishes are legally irrelevant.

Why This Matters: An Example:

Consider a 17-year-old who has been working part time, received an inheritance, or has compensation award (e.g. from a personal injury claim). If they were to die, they would die intestate meaning their estate would be distributed according to the intestacy rules.

Under intestacy, the parents, or surviving parent would typically inherit and administer the estate. This can lead to unjust outcomes, especially if:

• They young person was estranged from one or both parents.
• There were close relationships with siblings, grandparents, or foster carers the young persons might have preferred to benefit.
• The young person had expressed clear wishes or values, such as donations to charities or excluding a particular person from benefiting.

However, under current law, none of those wishes would have legal force.

The Proposed Reform – What the Law Commission Recommends:

The Law Commission recommends reducing the minimum age for making a Will to 16 years old. This brings the law in line with other areas where 16-year-olds are recognised as capable of making significant decisions, including:

• Consent to medical treatment (Gillick competence)
• Joining the armed forces
• Paying taxes and entering employment contracts

The reform recognises that young people may have property, savings, or personal preferences about what should happen to their belongings. It further recognises that some are living highly independent lives and the current law’s strict age limit fails to protect the dignity and autonomy of younger individuals.

Crucially, the Commission also proposes that the courts be granted a new power to authorise a Will on behalf of someone under 16 in appropriate cases. This would be particularly important for terminally ill children with clear wishes, young people with substantial assets and those in complex family or care arrangements.

How This Helps

The default rules of intestacy can be particularly harsh on minors. Therefore, the Law Commission’s aim is to help give power to those who have been failed previously.

It aims to give voice to vulnerable young people, especially those in care of that have been estranged from parents. It also aims to modernise outdated rules as the exception for “mariners at sea” but not for a 16-year-old with a job and assets feels absurd in a modern context. Finally, it aims to prevent unfair intestacy outcomes as a young person’s estate shouldn’t automatically benefit someone they wouldn’t have chosen themselves.

What About Capacity?

The Law Commission proposes that testamentary capacity for 16–17-year-olds be assessed under the Mental Capacity Act 2005 (MCA) rather than the older Banks v Goodfellow test. This modern approach reflects clinical and legal consensus that capacity should be judged functionally and not just by age.

For children under 16, the courts would assess whether a Will could be authorised based on their understanding and complexity of their wishes and estate.

Understandably, concerns may arise about undue influence or rushed decisions. But the commission’s proposals include strong built in protections such as; the presumption of capacity, professional involvement, court discretion in authorising pre-16 Wills, and clear formalities for executing and witnessing.

Comparative Jurisdictions

The Commission notes that many other common law jurisdictions have already modernised in this area. In Scotland, young people can make a Will from the age of 12. Additionally, New Zealand’s age restriction is generally 18 however, courts can approve wills for those under 18. Finally, in Australia, some states allow court-authorised minor Wills.

England and Wales are arguably outliers in maintaining a strict 18+ threshold without exceptions for the realities of modern youth.

What This Change Would Achieve

This change empowers 16–17-year-olds with significant assets or personal circumstances to make informed decisions. It further prevents any unfair outcomes where estranged or unsustainable relatives benefit by default. This change would be an incredible step forwards in modernising the law in line with wider legal and social recognition of young people autonomy.

Final Thoughts

This isn’t just a technical tweak to a Victorian statute. It’s a humanitarian reform, one that restores dignity and agency to young people who have assets, opinions and relationships worth honouring. For a legal system that often feels out of step with modern life this is a simple, proportionate step forward.