Reforming Will Formalities: Should the Court Have a Dispensing Power? A Look at proposed Reforms to Wills Law.

One of the most striking proposals in the Law Commission’s 2025 report is the potential introduction of a judicial dispensing power. This would give the court authority to declare a Will valid even where it does not meet all the required formalities, provided that it is satisfied the deceased intended the document to operate as their Will. This reform would mark a radical, but arguably necessary departure from the current strict formalisation that has governed English Wills law since the Victorian era.

At present, even the most minor technical failure, such as a missing witness signature, an unsigned draft, or even the wrong piece of paper, can invalidate a Will entirely, regardless of how clearly it expresses the deceased wishes. The law Commission proposed to bring English law into line with a number of comparable jurisdictions by prioritising testamentary intention over rigid form.

The Current Law: Section 9 of the Wills Act 1873:

The requirements for a valid Will are set out in section 9 of the Wills Act 1837, as amended by the Administration of Justice Act 1982. These are:

1. The Will must be in writing,
2. It must be singed by the testator (or by someone else in their presence and at their direction),
3. The testator must have intended by their signature to give effect to the Will,
4. The signature must be acknowledged in the presence of two witnesses, present at the same time, who then sign or acknowledge their signatures in the testator’s presence.

These formalities are mandatory and applied strictly. If a Will fails to comply, even for highly technical reasons, it is invalid. The courts have no power to overlook non-compliance, no matter how clearly the document reflects the deceased’s final wishes.

This strict approach with reinforced in Marley v Rawlings [2014] UKSC 2, where Lord Neuberger acknowledged that English law adopts a “formalistic” and “strict” approach to the execution of Wills. Even when two spouses accidentally signed each other’s Wills, a clear clerical error, the court could not uphold the documents as valid Wills until it had effectively recharacterised them through rectification.

Similarly, in Payne v Payne [2018] EWHC (Ch), a Will that was signed and witnessed, but not correctly attested, was held to be invalid. The court had no discretion to overlook the failure. This can lead to substantial injustice, particularly when the result is that an earlier Will is revived, or the estate falls to the intestacy rules, often benefiting estranged family members over close friends or carers.

The Law Commission highlights that this formalism stands in contrast with most other common law jurisdictions, many of which allow courts to validate informal Wills in appropriate circumstances.

The Proposal: A Judicial Dispensing Power:

The Law Commission proposes that the courts should be granted a statutory dispensing power, similar to that which exists in countries such as Australia, New Zealand, and South Africa. This power would allow the court to declare a Will valid even if it does not comply with section 9, as long as it satisfies that the document:

“Represents the testator’s wishes, not those of someone else.”

This would not amount to a loosening of the formal requirements for everyone, the default rule would still be that Wills must comply with section 9. However, in exceptional cases, where the testator clearly intended a document to be their Will and the only barrier is a technical failure of form, the court exercise discretion to uphold it.

For example, the dispensing power could allow the court to validate:

• A Will signed by the testator in the presence of only one witness,
• A draft Will in the testators handwriting that was never formally executed,
• A digital document or message (in some situations),
• A signed document where the witness did not correctly acknowledge or attest their signatures.

The proposed model draws heavily on section 8 of the Wills Act 2007 (New Zealand), and section 8 of the Succession Act 2006 (New South Wales, Australia). These allow the court to admit probating a document that does not comply with the standard execution requirements, so long as the judge is satisfied on the evidence that the document was intended to be the person’s Will.

Addressing Concerns: Safeguards and Scope:

Of course, easing formalities carries risk. The formal requirements under section 9 exists to prevent fraud, coercion, and uncertainty. Removing or weakening those requirements could open the door to greater litigation or devious behaviour.

The Law Commission is keenly aware of these concerns. It proposes that:

• The dispensing power would only apply after death – courts would not be able to validate a Will during the testator’s lifetime.
• The burden of proof would be on the person seeking to rely on the informal document.
• The court must be affirmatively satisfied that the testators intended the document to be a Will, mere evidence of a draft wording or general thoughts about death would not suffice.
• The existing rules about capacity, undue influence, and knowledge and approval would still apply.

The Commission also suggests that the court could draw upon evidential safeguards from comparable jurisdictions, such as handwriting analysis, witness testimony, or forensic evidence from digital sources.

In practise, this would mean the dispensing power would not be used frequently, but it would provide a vital safety net in cases where the testator’s intention is unmistakably clear, but the Will falls short on form.

Case Studies and Comparative Insights:

One helpful illustration of the kind of injustice the reform aims to prevent can be seen in Re Estate of Hickford (dec’d) (High Court, Napier, 2009), the testator was terminally ill and discussed their wishes with family members. A solicitor prepared a draft Will, but the testator died before signing it, so it did not meet the formal execution requirements of section 11 of the Wills Act 2007 (NZ). Notwithstanding this, the High Court held that the draft nonetheless expressed the deceased’s testamentary intentions, as required by section 14, and declared it valid as a Willl. The judge reasoned that the deceased had clearly intended the document to be their Will and simply had not had time to execute it formally. Under English law, that Will would have failed.

Closer to home, the Commission draws attention to the rising use of informal documents, such as notes, phone messages, and unsigned drafts, especially in emergency contexts (e.g. during COVID-19 or in terminal care settings). In these cases, failing to recognise a document that clearly reflects a testator wishes may create significant injustice, especially where the alternative is intestacy or an outdated Will.

Final Thoughts: Balancing Certainty and Fairness:

The proposed dispensing power is not an extensive rejection of formalities. It is a recognition that, in some rare and difficult cases, rigid adherence to form defeats substance. Where there is compelling evidence that a person wanted a document to be their Will, the courts should not be powerless to give effect to that wish.

This reform could welcome flexibility to a legal system that often seems out of step with the way people live, plan, and communicate today. For clients, it offers reassurance that their true intentions may be honoured, even if a technical mistake occurs. For professionals, it provides a framework to rescue otherwise failed testamentary documents, without encouraging carelessness or abuse.

As with other proposed reforms, the challenge will be to balance legal certainty with fairness and accessibility. If the dispensing power is carefully drafted and sensibly applied, it has the potential to achieve exactly that.