Alterations Flashcards
Who has onus in proving alterations?
- Onus shifts depending on kind of will
- Attested wills= presumption that any alterations made after execution, onus on someone trying to prove it happened before
- Holographic= presumption alterations made prior to execution, onus on person saying not valid alteration
Obliteration Alterations
- Do not need to comply with rules that generally govern alterations (akin to physical destruction)
- Partial destruction of a will (if you physically cut something out/ obliterate it then alteration approved)
Douglas Estate
Facts: covered part with whiteout
Ratio: Original words could not be deciphered. Test- is it apparent to the human eye? Not probated, not for us to scratch off so obliterated
Finch v Comb
Facts: testator put paper over it so if you just look at it you can’t see but if you hold to the light you can
Ratio: probatable
Re Itter
Facts: Hired a handwriting expert who read the will with infrared camera
Ratio: not probated, this was too much
Estate of Stackhouse
Facts: Someone marked out words with black marker, no evidence of who did it
Ratio: court asked people to see if they could read it and two people could. No signature to show it was her. Probated, marker has no effect could still read it.
Altering will and substituting with instructions/ gifts for someone else
- If attested will, alterations must be attested
- If holographic, just testator needs to sign
- Not sufficient to just cross out or initial, if completely obliterated that’s different
Alterations on attested wills deemed holographic codicils
- Capable of probate on their own
- Difference is whether or not what is written on will is capable of probate on its own
- Some kind of instruction the court is capable of understanding and carrying out
- Codicil doesn’t have to be separate document
Undue influence, capacity, mistake
Apply to alteration just like they do to a will
