Alterations, Amendments and Revocations Flashcards
Incorporating documents into a will
To successfully incorporate an unexecuted document into a will, each of the following criteria must be satisfied:
a) The document must exist when the will is executed (or at the time a later codicil is made – because the codicil re-publishes the original will)
b) The will must refer to the document as being in existence at the time of execution
c) The document must be clearly identified in the will
Letters of wishes
Where a trust is created under a will you may find an expression of wishes / letter of wishes has been drafted by the testator and stored with the will.
These ‘letters’ are common in practice and are drafted by the testator. They set out how the testator would like the trustees of the estate to manage their discretionary powers.
The letters are not legally binding and merely serve as guidance.
These letters do not form part of the will (or trust created under it) and there is no intention for these documents to be incorporated into the will.
Hand alterations
If a testator does decide to amend their will (or codicil) by hand the effect of any alteration is governed by s 21 Wills Act 1837 (‘WA 1837’):
“No obliteration, interlineation, or other alteration made … after the execution … shall be valid or have any effect… except so far as the words …. before such alteration shall not be apparent, unless the alteration shall be executed in like manner as … required for the execution of a will”
Types of alterations
- Obliteration: where the text has been crossed out in such a way that the original text is illegible
- Interlineation: where writing has been inserted between the existing lines of the document, often to add something that was previously omitted.
- Other alterations: include additions added to the end of the will, a strike through of text which is still legible
Post-execution alterations
The general rule is that amendments made after the will is executed are invalid and unenforceable. The alteration has no effect and the original wording is given effect to.
Presumptions on timing
It is only alterations made after execution that are invalid. Alterations made prior to execution form part of the will and are enforceable.
However, in many cases it will be difficult to know from the face of the will when the alteration occurred and the personal representatives would encounter difficulties when the will was admitted to probate. Therefore, there is a rebuttable presumption that an alteration was made after execution (which would render the alteration invalid) (Cooper v Bockett).
The personal representatives could produce affidavit evidence of the state and condition of the will at the time of execution (confirming when the alteration was made) although this would require the witnesses to accurately recall what the will looked like at execution.
Attested alterations
If an alteration is executed like a will (signed by the testator and two witnesses in accordance with s.9 WA) alongside the alteration it is valid. The witnesses do not have to be the same people who witnessed the will.
Execution of manuscript amendments
A testator who needs to make manuscript amendments to their will should be instructed to execute the amendments in the same way as a will.
This is the case even if the amendments are made before the will as a whole is executed and would be valid in any event.
Because attested alterations are given effect to ensuring all changes are attested removes the requirement to prove when the alterations were made and can avoid unnecessary dispute.
If the manuscript amendment itself is not specifically attested, a testator may instead confirm manuscript amendments by:
- re-executing the amended will as a whole
- executing a subsequent codicil that affirms the will it amends
Note that in both cases, express reference to the manuscript amendments is required to ensure the presumption that the alterations were made after execution is rebutted.
Obliteration
If the original wording is not apparent because it has been obliterated, covered over or cut out, the obliteration is treated as having been made by the testator with an intention to revoke and the alteration will be effective.
Alt Text: The example contains the words ‘I give to my cousin John Taylor of [address]’. A manuscript amendment has been made, obliterating all the words following ‘address’. It is not possible to read what is underneath.
In the example above, John would receive nothing.
Meaning of ‘apparent’
“except so far as the words …. before such alteration shall not be apparent…”
In this context ‘apparent’ means the original wording can be deciphered by natural means (reading it or holding it to the light etc. but not e.g. infra-red technology) and without the need for extrinsic evidence (e.g. draft documents).
If the testator did not intend to revoke the gift or a third party made the amendment extrinsic evidence can be used to establish the original gift and infra-red technology would be permitted. If the original gift could be determined the beneficiary would take their entitlement.
Conditional revocation
If the testator made the obliteration with a conditional intent to revoke the gift then extrinsic evidence is permitted to show the original wording. A fresh copy of the will containing the original wording would be admitted to probate.
A conditional intention to revoke is usually found where the testator attempted to substitute another figure (here £100) for the original wording (here unknown) and the attempt at substitution has failed.
Alt Text: The example contains the words ‘I give to my cousin John Taylor of [address]’. A manuscript amendment has been made, obliterating all the words following ‘address’. It is not possible to read what is underneath. The words ‘£100’ have been written in by hand underneath the obliteration.
The court can find that the testator only intended to revoke the original gift if the substitution (£100) was successful.
However, if the addition of £100 is not a valid alteration (i.e. it was made after execution or cannot be proved to have been made before) then the substitution is unsuccessful, and if the substitution is not successful there is no valid revocation of the original gift.
The original gift, if it can be ascertained, should be given effect to and extrinsic evidence is permitted to establish the original wording.
When are manuscript changes appropriate?
As previously noted, clients should be advised against making any manuscript alteration to their will (or codicil) to avoid any issues or dispute regarding the effect of the changes and the application of s 21 WA.
However, manuscript alterations may sometimes be appropriate where:
- The amendments have no impact on the interpretation or meaning of the will. This could include correction of a typo, change to a beneficiary’s address or correction to the spelling of a name.
- The changes must be made urgently and a codicil or new will cannot be prepared. This may arise where a testator requires urgent hospital treatment or is due to travel abroad.
If any amendments are made, the testator and witnesses should initial the alterations even if making these before execution and even if the amendments are unimportant. This will avoid the requirement to rebut the presumption on timing.
Codicils
A properly drafted will usually replaces any previous wills so the testator has only one valid will at a time. A codicil is a formal testamentary document that amends an earlier will, rather than replaces it, and both documents remain active and are intended to be read together.
The rules relating to the validity of a will also apply to any codicil. To make a valid codicil a testator must have testamentary capacity, knowledge and approval (of the codicil, and the will and any previous codicils referred to) and comply with s.9 Wills Act 1837.
A codicil must be drafted carefully with reference to the original will it amends. Following the testator’s death it is the instructions in the original will, as amended by any codicils, which are given effect to.
When are codicils appropriate?
Codicils may be used to:
- create new provisions in a will e.g. add a legacy for a new beneficiary
- edit existing provisions in a will e.g. change the value of a pecuniary legacy
- revoke provisions in a will e.g. remove a particular beneficiary’s entitlement
If the testator wants to make significant or multiple changes it is usually advisable to execute a new will rather than make a codicil to remove the risk of inconsistency between the documents.
There is no legal maximum number of codicils a person can make but given the potential for confusion it is usually advisable to limit the number of codicils made to an original will. Historically, making a codicil was easier and cheaper than making a new will but advances in technology mean this is no longer necessarily the case.
If there are no express words of revocation there is a presumption (which can be rebutted) that the terms of the original will remain where possible. The codicil will only revoke an earlier will to the extent there is inconsistency between them (Lemage v Goodban).
Where inconsistencies arise with regards references to the date of the will (or earlier codicil), or the number of codicils that exist, affidavit evidence can be provided to explain the discrepancy.
Republishing a will
When a testator executes their codicil this acts to ‘republish’ the will (and any codicils) to which it expressly refers. The will is given effect to as if it had been executed on the date on which the codicil was executed.
When applying general rules of construction to clauses in the original will, whether or not they were amended by a later codicil, the date of the codicil would be used.
For example, when considering the clause below, careful thought is needed regarding which picture is given and who is entitled to it.
“I leave the picture hanging in the hallway at the date of my will to the youngest son of my brother Alan”
The effect of ‘re-executing’ the original will means if the:
- testator’s brother Alan had two sons at the date of the will but three sons at the date of the codicil, the youngest son at the date of the codicil would benefit.
- testator had an expensive painting in the hallway of his house when the will was executed but had replaced this with a cheap print by the time the codicil was executed, the beneficiary would inherit the print.
It is essential that the effect of the will being republished is considered when drafting a codicil to ensure the overall effect meets the testator’s intention.
Correcting problems by codicil
As the execution of a codicil re-executes the will (or previous codicils it refers to) the codicil can ‘correct’ problems with an earlier testamentary document.
If a beneficiary (or their spouse) witnesses a will, s15 Wills Act 1837 has the effect of denying the beneficiary their inheritance. However, if a later codicil is witnessed by different people, the gift under the will to the original witness can be given effect to and the effect of s 15 WA 1837 is avoided.
S15 WA 1837 applies to a codicil in the same way as a will. So a witness to a codicil (or their spouse) must not benefit under either the original will or codicil.
Republishing a will
If the will (or previous codicil) contains unattested manuscript amendments, which would not have effect under the general rule in s 21 Wills Act 1837 because they were made (or deemed to be made) after execution, these can be confirmed by a later codicil.
The amendments must be made before the codicil is executed, and the codicil must expressly refer to the alterations it confirms. Otherwise additional evidence is needed to prove the amendment was made before the codicil was executed.
If a will (or previous codicil) was not properly executed in accordance with the requirements of s 9 Wills Act 1837 then due execution of the codicil will validate the original will (or previous codicil) to which it refers. Technically this is not a “re” execution as due execution of the original document did not occur.
