Prep 9 Amendments, Codicils, Documents and Marriage/ Divorce

Criteria for incorporating an unexecuted document into a will

1. Document must exist when the will/ codicil is executed

2. Will/ codicil must refer to the document as being in existence at time of execution

3. Document must be clearly identified

4. Document itself does not have to satisfy s9 Wills Act 1837

STEP Provisions

May be incorporated into a will/ codicil by reference

Letter of Wishes

Does not form part of the will/ codicil

Types of hand amendment to a will/ codicil

• Obliteration

• Interlineation

• Other alterations such as a strike through

General rule for post-execution alterations

Do not give effect and the original wording will still stand

Preumption of timing for alterations under Cooper v Bockett

If unclear when the alteration was made, it is presumed to be after execution

Attesting alterations

Alterations may be attested by testator and two witnesses post execution to give effect to the alteration

Exeptions to the rule of unattested alterations

• Where a blank space has been completed; and

• Presumption can be rebutted by internal or external evidence

Obliteration

If the original wording is not apparent as it has been completely obliterated, this will be treated as intention to revoke and alteration will be effective

Meaning of “apparent”

The original wording can be deciphered by natural means and without the need for extrinsic evidence

Conditional revocation

If the testator made the obliteration with the conditional intent to revoke the gift, then extrinsic evidence is permitted to show the original wording

When are manuscript changes appropriate?

1. When amending a typo/ mistake or making a correction

2. When changes must be made urgently

When are alterations given effect to?

• Made before execution of the will or codicil. 

• Obliterations with intent to revoke. 

• Attested alterations. 

• Completion of a blank space. 

• Subsequently confirmed by re execution or codicil with reference to the alteration. 

When are alterations not given effect to?

• Made after execution of the will or codicil (Provided original gift is still apparent) 

• Obliterations without intent to revoke. 

• Obliterations by third parties. 

• Obliterations as conditional revocation (Provided extrinsic evidence of the original gift can be found) 

• Unattested alterations

Codicil

A formal testamentary document amending an earlier will rather than replacing it

When are codicils appropriate?

• Create new provisions in a will. 

• Edit Existing provisions in a will. 

• Revoke provisions in a will. 

Lemage v Goodban

A codicil will only revoke an earlier will to the extent there is inconsistency between them

Republishing a will

When a testator executes a codicil, this republishes the will to which it expressly refers and corrects any mistakes in the original will

Revival under s22 Wills Act 1837

A codicil can revive a will that was previously revoke, if this is the testator’s intention

Effect of Marriage or Civil Partnership under s18/18B Wills Act 1837

Revokes any will or codicil made prior to the marriage/civil partnership, even if not the testator’s intention

Requirements for Wills in contemplation of marriage

• Name the future spouse or civil partner. 

• Identify the intended ceremony. 

• Expressly state whether or not the testator intends the will to be revoked on the event of marriage or civil partnership. 

Revocation by divroce/ dissolution under s18A/18C Wills Act 1837

Once the court confirms the divorce/ dissolution, any provision relating to the former spouse/ civil partner will be revoked