Codicls & Alterations (Alterations and amendments to Wills)- FS Flashcards
(31 cards)
When is an alteration to a will made prior to execution considered valid under the law?
An alteration made before execution is valid if the testator intended the alteration to form part of the will. However, there is a presumption that alterations were made after execution unless proved otherwise.
What is the legal presumption regarding the timing of alterations to a will, and how can it be rebutted?
The presumption is that alterations were made after execution. This can be rebutted with evidence, such as testimony from the witnesses to the execution that the alteration existed at the time of execution.
Under what statutory provision are alterations made after execution valid?
Section 21 of the Wills Act 1837 governs the validity of post-execution alterations. The alterations must be executed like a will.
What formalities are required to validate a post-execution alteration to a will?
The testator and both witnesses must initial the margin near the alteration, and it must be signed and witnessed with the same formalities as a will.
What happens if a post-execution alteration is not properly executed but the original wording remains legible?
The original wording will stand and take effect as long as it is optically apparent.
What is the effect of an alteration that obliterates the original text and is not accompanied by a valid substitution?
The obliteration may revoke the original text by destruction if accompanied by an intention to revoke, but no new provision takes effect unless properly executed.
What is the “conditional revocation rule” in the context of invalid alterations to wills?
If substitute text is added and the original wording obliterated but the alteration is not properly executed, the court may find the revocation was conditional on the substitution being valid, and reinstate the original wording.
What must be shown for a court to apply the conditional revocation rule?
It must be evident that the testator intended to revoke the original wording only if the substituted text would be effective. If the substituted text is not properly executed, the original wording remains valid.
What is required for an alteration to be considered part of the original will if made before execution?
The testator must have clearly intended the alteration to be part of the will at the time of execution.
Is it necessary to notify or involve a court to validate a pre-execution alteration?
No, provided there is evidence (such as witness confirmation) that the alteration was present at execution and intended to be part of the will.
Can an invalid alteration revoke part of a will?
Yes, if the alteration obliterates the original wording and shows an intention to revoke, that section is revoked by destruction, but only that part.
Does a post-execution alteration have to be signed by the testator in full to be valid?
No, initials by the testator and witnesses in the margin near the alteration are sufficient under Section 21 of the Wills Act 1837.
What happens if the testator crosses out part of a will and adds a replacement clause without proper execution?
The replacement clause is invalid, and depending on visibility, either the original stands or it is revoked under the conditional revocation rule.
How does the law distinguish between revocation by destruction and invalid alterations?
Revocation by destruction requires obliteration of the text with an intention to revoke, whereas an invalid alteration may fail to change the will if it does not meet execution requirements.
What is the effect of properly executed alterations made after a will has been signed?
They are legally valid and replace the original provisions they alter, provided they comply with the formal execution requirements.
What is a codicil in the context of wills, and how does it function legally?
A codicil is a testamentary document executed with the same formalities as a will that supplements, amends, or revokes provisions in the original will. It must be read alongside the will to interpret the testator’s true intentions.
Can a testator execute more than one codicil to their will?
Yes, there is no limit to the number of codicils a testator may execute. All codicils are legally binding and must be interpreted together with the original will.
What effect does a properly executed codicil have on the original will under the Wills Act 1837?
A codicil republishes the will. According to Section 34 of the Wills Act 1837, the will is deemed to have been made at the date of the codicil, not at its original date of execution.
Why is the doctrine of republication significant in the interpretation of wills following the execution of a codicil?
Because it changes the reference point for terms like “eldest son” or “my current spouse” to the date of the codicil rather than the date of the original will, potentially altering the identity of beneficiaries.
In what way can a codicil alter the identity of a beneficiary, even if it doesn’t amend the actual provision naming them?
By republishing the will, a codicil updates temporal references. For example, if a beneficiary dies before the codicil, the updated reference (e.g., “eldest child”) may now refer to a different person based on their status at the date of the codicil
How must a codicil be executed to be valid?
A codicil must be signed by the testator in the presence of two witnesses, who must also sign in the presence of the testator and each other—identical to the execution requirements of a will.
Does a codicil override the entire will?
No, a codicil only amends or revokes specific parts of the will that it refers to. All other provisions of the original will remain in effect.
How should multiple codicils be treated when interpreting a will?
All codicils must be read cumulatively with the will. Each codicil can supplement, clarify, or revoke parts of the will or previous codicils, and the documents are construed together to determine the testator’s intent.
What is the potential risk of executing a codicil without updating beneficiary designations explicitly?
Because of republication, time-sensitive terms (like “eldest child”) may now refer to a different person, which could unintentionally change who inherits certain property.
