The Dispensing Power: Courts Could Save Informal Wills

Under the current law, one small mistake can void your entire will

To make a valid will in England and Wales today, you must follow strict formality requirements laid down by the Wills Act 1837. The will must be in writing, signed by the person making it (the testator), and that signature must be witnessed by two people who are both present at the same time.

If any of these requirements is not met, the will is invalid. It does not matter how clear the person's wishes were. It does not matter that they spent weeks carefully setting out who should inherit their home, their savings, or their possessions. If one of the two witnesses was not in the room when the testator signed, or if the will was signed but never witnessed at all, the document has no legal effect.

There is currently no mechanism for a court to step in and rescue that will. The result is that the estate is distributed under the intestacy rules instead -- rules that may bear no relation to what the deceased actually wanted.

When technicalities defeat clear intentions

This is not a theoretical problem. In the 2019 case of Burgess v Penny, a court found that one of the two witnesses had not actually seen the testator sign. The will clearly reflected the testator's wishes, but it was declared invalid.

In another example cited in the Law Commission's report, a charity -- Macmillan Cancer Support -- described a case where a woman had completed and signed paperwork setting out her wishes for her will. Her solicitor was delayed in finalising the will due to Christmas and transport difficulties. By the time the solicitor was able to visit, the woman had died. The intended gift to Macmillan, worth over 100,000 pounds, was lost. She died intestate and her estate passed to a beneficiary she did not even know.

These cases illustrate a tension at the heart of wills law: the formality requirements exist for good reasons (to prevent fraud, to ensure the testator is acting freely, and to provide certainty), but when applied rigidly they can frustrate the very wishes they are supposed to protect.

What the dispensing power would do

In Modernising Wills Law (Law Com No 419), published in May 2025, the Law Commission recommends introducing a "dispensing power" for England and Wales. The draft Wills Bill includes this power in clause 10.

The concept is straightforward. If a will fails to comply with one or more of the formality requirements, the High Court would have the discretion to deem those requirements to have been met -- effectively treating the document as a valid will, even though it was not properly executed.

The court would need to be satisfied of two things:

1. The document demonstrated the testamentary intentions of the deceased at the time it was made.
2. Those intentions continued to represent the person's wishes at the time they died.

In other words, the court must be confident both that the person genuinely set out how they wanted their estate distributed, and that they did not change their mind before they died.

The power would operate on the ordinary civil standard of proof -- the balance of probabilities -- and the court would consider all relevant evidence, including the document itself, evidence of signing or witnessing, and any statements the deceased made to others about their wishes.

It covers electronic records too

The term "document" in the draft Bill is deliberately broad. It includes not only paper documents but also electronic records such as text messages, emails, and video recordings.

This means that, in principle, a video message recorded on a phone, an unsent text message, or an email setting out testamentary wishes could be validated by a court under the dispensing power. The Law Commission drew on real examples from jurisdictions that already have similar powers: in Australia, a video recording made shortly before death was validated as a will (Re the Estate of Wai Fun Chan [2015] NSWSC 1107), and in Queensland, an unsent text message was accepted as a valid will (Re Nichol [2017] QSC 220).

The inclusion of electronic records is intended to future-proof the power. As the Law Commission noted, to exclude electronic records would be to place an arbitrary limit on the scope of the power that fails to recognise how people communicate and keep records in the modern world.

A safety net, not a shortcut

The Law Commission is careful to emphasise that the dispensing power is not intended to be a viable alternative to proper will execution. It is a safety net for cases where something has gone wrong despite genuine effort.

Several important safeguards limit the power:

• It is discretionary. The court is not obliged to exercise it. If, for example, the person bringing the claim delayed unreasonably, the court could refuse.
• Substantive validity still applies. The testator must have had mental capacity, must have known and approved the contents, and must not have been subject to fraud or undue influence. The dispensing power only excuses failures with formalities, not with these fundamental requirements.
• It requires a document or record. Purely oral statements -- even those made to witnesses -- would not be covered. There must be a written or electronic record of the testamentary intentions.
• The court must be satisfied the intentions continued until death. A draft will that the testator later decided against, or a text message sent in the heat of the moment that the person subsequently regretted, would not qualify.

The Law Commission also noted concerns that the power might encourage people to be careless about execution, or to skip professional advice altogether. Their view is that this is unlikely. The dispensing power only becomes relevant after death, when the testator can no longer give evidence. It provides no certainty to the testator during their lifetime that their wishes will be upheld. By contrast, a properly executed will is valid from the moment it is signed and can be proved in common form without any application to the court.

How it works in other countries

England and Wales would not be the first jurisdiction to adopt a dispensing power. The concept has been operating successfully in Australia, New Zealand, several Canadian provinces, and a number of US states for years.

The New Zealand Law Commission provided data showing that between 2007 and 2017, there were 182 High Court judgments under their dispensing power. Most cases were uncontested, and 92% of the documents submitted were validated by the court. Law reform bodies in British Columbia and Alberta similarly reported that the power had not led to a flood of litigation, and that courts were applying it cautiously.

The Law Commission also heard from the Queensland Law Society, which moved from a "substantial compliance" model to an intention-based dispensing power in 2006. Their view was that the intention-based approach "is considered to be more effective and appropriate to achieving the intention of the deceased."

The draft Bill has not yet become law

It is important to note that the draft Wills Bill has not been introduced to Parliament. There is no timetable for its passage and no guarantee that it will be enacted in its current form, or at all. The dispensing power is a recommendation of the Law Commission, not yet a provision of the law.

Until and unless the draft Bill becomes law, the current strict rules apply in full. A will that fails to comply with the Wills Act 1837 is invalid, and there is no court power to save it.

What should you do now?

The most important lesson of the dispensing power debate is not that courts might one day be able to rescue informal wills. It is that getting your will right in the first place is far better than relying on anyone -- including a court -- to fix it later.

Even if the dispensing power is enacted, pursuing a claim through the High Court will be expensive, time-consuming, and uncertain. The Law Commission itself acknowledged that the dispensing power route would be "more costly and exceptional than the cost of a properly drawn up and executed will." Your family would face legal fees, delay, and the stress of court proceedings at a time when they are already grieving.

The simplest way to protect your wishes is to make a valid will now, properly executed under the current rules. GetWill's online process, with solicitor review, is designed to make that as straightforward as possible -- ensuring your will is correctly signed, properly witnessed, and legally binding from the moment you complete it. No court application needed.