Alterations and Amendments

Question 1

Which criteria must be satisfied to successfully incorporate an unexecuted document into a will?

Answer 1

document must exist when the will is executed (or at the time a later codicil is made)
The will must refer to the document as existing at time of execution
The document must be clearly identified in the will

Question 2

What does a letter of wishes set out?

Answer 2

how the testator would like the trustees of the estate to manage their discretionary powers

Question 3

legal status of letter of wishes

Answer 3

not legally binding and not incorporated into the will

Question 4

amendments made after the will is executed are

Answer 4

invalid and unenforceable

Question 5

to be valid, alterations should be made

Answer 5

before execution with testator’s knowledge and approval

Question 6

What is the presumption re when alterations are made?

Answer 6

rebuttable presumption that an alteration is made after execution (Cooper v Bockett)

Question 7

Method for providing amendments were made before execution

Answer 7

PRs could produce affidavit evidence of the state and condition of the will at the time of execution

Question 8

Are obliterations, interlineations or other alterations made after the execution valid?

Answer 8

Generally no

Question 9

obliteration

Answer 9

where the text has been crossed out in such a way that the original text is illegible

Question 10

interlineation

Answer 10

where writing has been inserted between the existing lines of the document

Question 11

Where should attestations be placed in the will?

Answer 11

in the margin, near the alteration. if there are lots of alteration, an overall attestation clause is sufficient.

Question 12

Where a blank space has been completed eg […] becomes [£500], there is a presumption that this occurred

Answer 12

before execution

Question 13

Effect of obliteration

Answer 13

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

Question 14

Effect of conditional revocation

Answer 14

The court can find that the testator only intended to revoke the original gift if the substitution was successful

Question 15

Alterations that will be effective

Answer 15

alterations made before will/codicil
obliterations with intent to revoke
attested alterations
completion of a blank space
alterations subsequently confirmed by re-execution or codicil

Question 16

alterations that are not effective

Answer 16

alterations made after will/codicil
obliterations without intent to revoke
obliterations by 3rd parties
unattested alterations

Question 17

How should alterations be executed?

Answer 17

same as will - signed by testator in presence of 2 witnesses

Question 18

If a beneficiary witnesses a will that they benefit from, how can they benefit from a later codicil?

Answer 18

if a later codicil is witnessed by different people, the gift under the will to the beneficiary witness becomes valid

Question 19

Requirements to revoke a will by destruction

Answer 19

testator must have testamentary capacity, intention to revoke and commit an act of physical destruction (eg tearing, burning)

Question 20

If intention to revoke is conditional, it will not apply until

Answer 20

the condition is satisfied

Question 21

Can another person destroy the will?

Answer 21

Yes, if the testator has testamentary capacity, requests the destruction and is present

Question 22

Effect of a missing will

Answer 22

the testator is presumed to have destroyed their will with an intention to revoke it, unless evidence is presented to suggest otherwise (Patten v Poulton)

Question 23

Effect of a damaged will

Answer 23

the testator is presumed to have carried out the act of destruction with the intention to revoke, unless evidence suggests otherwise

Question 24

Those administering the estate of the deceased will have the burden of rebutting a presumption of revocation by showing…

Answer 24

a valid will existed when the deceased died but was lost/damaged after death;

the deceased did not intend to revoke their will;
​
the deceased did not carry out or give instruction for the act of destruction​

Question 25

When may a copy of the will be submitted to probate?

Answer 25

if sufficient evidence can be provided to rebut the presumption that the testator intended to revoke their missing/damaged will

Question 26

Benefit of an express revocation clause

Answer 26

ensures that all previous wills are revoked and there is only one valid will at any one time

Question 27

When may it be appropriate for a testator to have more than one valid will?

Answer 27

if they own assets abroad

Question 28

Implied Revocation by Will

Answer 28

if there is not an express revocation clause, the testator will have more than 1 will - the later will is given priority if they are inconsistent

Question 29

If testators make a mutual will, can they make individual amendments?

Answer 29

No, they agree not to amend their will without the consent of the other

Question 30

What happens if a testator breaches mutual will agreement and amends their own will or makes a new one?

Answer 30

equity may impose a constructive trust over that testator’s property on the terms previously agreed and limit the effect of any new will

Question 31

Revocation by marriage

Answer 31

Marriage and civil partnerships automatically revoke in full any will (and codicil) made prior to the marriage/civil partnership

Question 32

How should you advise a client who plans to marry/enter a civil partnership after signing their will?

Answer 32

The will should be drafted in contemplation of marriage/civil partnership by naming the future spouse/civil partner and identifying the intended ceremony. It must also expressly state whether or not the testator intends the will to be revoked on the event of the marriage/civil partnership.

Question 33

Revocation by divorce/dissolution

Answer 33

the court order confirming the divorce/dissolution automatically operates as a limited/partial revocation of their will

Question 34

A will takes effect as if the former spouse or civil partner had died on the date of divorce (unless stated otherwise). What impact does this have on any gifts or appointments involving them?

Answer 34

an appointment of the former spouse/civil partner as executor or trustee is not effective; and a testamentary gift to the former spouse or civil partner will fail

Question 35

What happens if a will revoked by divorce named the former spouse/civil partner as sole executor?

Answer 35

a statutory order is followed and an administrator will be appointed in the absence of any executor who can act

Question 36

substitute wording in a will will not take effect unless

Answer 36

the testator had testamentary capacity, intention to revoke and complies with s 9 Wills Act 1837 formalities

Question 37

If an amendment completely obliterates and it is not possible to read what the original gift was, the donee will receive

Answer 37

nothing