Alterations, revocation and amendments

Why should will provisions normally be contained in one executed document?

To ensure all provisions comply with the formal execution requirements and avoid uncertainty; schedules should preferably be included within the will itself.

When can an unexecuted document be incorporated into a will?

Where the requirements for incorporation by reference are satisfied.

What is the effect of validly incorporating an unexecuted document into a will?

The document becomes part of the will despite not complying with s 9 Wills Act 1837; it also becomes a public document once admitted to probate.

What are the three requirements for incorporating a document into a will?

(1) The document must exist when the will is executed (or when a later codicil is made); (2) the will must refer to it as already existing at that time; and (3) the document must be clearly identified in the will.

What are STEP provisions?

A nationally recognised set of administrative powers for personal representatives and trustees, commonly incorporated into wills and trust deeds by reference.

What is the legal status of a letter of wishes?

It expresses how the testator would like trustees to exercise discretionary powers but is not legally binding and does not form part of the will.

What are the three main ways to amend an existing will?

(1) Make an entirely new will (usually advisable); (2) execute a codicil; or (3) make manuscript alterations to the original will.

When might manuscript amendments to a will be appropriate?

Where changes do not affect interpretation or meaning (e.g. correcting a typo, spelling or beneficiary address), or where urgent changes are needed and there is insufficient time to prepare a new will or codicil.

Why are manuscript amendments generally discouraged?

They can create uncertainty over validity and whether alterations were made before or after execution, potentially making intended changes unenforceable.

What does s 21 Wills Act 1837 provide about alterations made after execution?

Post-execution obliterations, interlineations or other alterations are invalid unless the original wording is no longer apparent, or the alteration is executed in the same manner as a will under s 9.

What is an obliteration?

Where existing text is crossed out or covered so that it becomes illegible.

What is an interlineation?

Writing inserted between existing lines of a document.

What are 'other alterations' for the purposes of s 21?

Other changes to the will, including additions and striking through text that remains legible.

What is the general rule for alterations made after execution of a will?

They are invalid and have no effect if the original wording remains apparent, unless the alteration is validly executed in accordance with s 9.

What is the rebuttable presumption concerning manuscript alterations?

An alteration is presumed to have been made after execution and is therefore invalid, unless evidence (e.g. affidavit evidence) establishes that it was made beforehand.

How can the presumption that an alteration was made after execution be avoided?

The testator and witnesses can initial the alteration, even if it was made before execution.

How are alterations made before execution treated?

They are generally valid, although they should still be executed in accordance with s 9 to ensure validity.

What is the exception to the general rule for post-execution alterations where the original wording is no longer apparent?

The alteration may be effective because the testator is presumed to have intended to revoke the original wording.

How can the presumption that an obliteration was intended to revoke the original wording be rebutted?

By evidence that the obliteration was accidental or was made by someone other than the testator.

What is conditional revocation by obliteration?

Where the testator obliterates original wording intending to replace it with different wording, but the replacement is invalid. Extrinsic evidence may establish the original wording so that the original gift can take effect.

When is original wording considered 'apparent' under s 21?

Where it can be deciphered by natural means without the need for extrinsic evidence.

When can extrinsic evidence be used in relation to an alteration?

Where the original wording is no longer apparent, or where evidence is needed to establish that an obliteration was accidental, made by another person or intended as conditional revocation.

How can a post-execution alteration be made valid under s 21?

It must be executed in accordance with s 9, by signing alongside the alteration or elsewhere in the will with a note referring to it.

Can someone other than the testator validly make an alteration to a will?

No. Alterations made by another person are invalid.

Must the witnesses to an alteration be the same witnesses who witnessed the original will?

No. The alteration can be witnessed by different witnesses.

How can an unattested alteration be subsequently confirmed?

By re-executing the amended will as a whole, or by executing a subsequent codicil that affirms the will and expressly refers to the alteration.

Which manuscript alterations are generally given effect to?

Alterations made before execution; obliterations intended to revoke; obliterations by third parties; conditional obliterations where extrinsic evidence establishes the original gift; attested alterations; completion of blank spaces (presumed completed before execution); and alterations subsequently confirmed by re-execution or codicil.

Which manuscript alterations are generally not given effect to?

Post-execution alterations where the original wording remains apparent; obliterations without an intention to revoke; and unattested alterations presumed to have been made after execution.

What is a codicil?

A testamentary document that amends, rather than replaces, an existing will. Both documents remain operative and must be read together.

What formal requirements apply to a codicil?

The same validity requirements as a will: testamentary capacity, knowledge and approval, and compliance with s 9 Wills Act 1837.

When is a codicil appropriate?

To add a new provision or beneficiary, amend an existing provision (e.g. change a pecuniary legacy), or revoke a particular provision or beneficiary's entitlement.

When is making a new will preferable to a codicil?

Where significant or multiple changes are required. There is no legal maximum number of codicils, but one codicil is preferable to multiple codicils.

What should a codicil expressly state about the original will?

The extent to which the testator confirms or revokes the earlier will.

What is the general presumption where a codicil does not expressly revoke the original will?

The original will remains effective wherever possible; it is revoked only to the extent that its terms are inconsistent with the codicil.

What drafting errors should be avoided when preparing a codicil?

Failing to record changes to the testator's name/address; failing to affirm unchanged provisions; incorrect or missing dates and cross-references; referring to the original will but not earlier codicils; failing to account for previous changes; and incorrect clause numbering.

What is the effect of executing a codicil on the original will?

It republishes the will, meaning the will takes effect as if executed on the date of the codicil.

Why must the testator's circumstances be reconsidered when a codicil republishes a will?

Changes since the original will may affect its operation, e.g. replacement of assets or the birth of additional children.

How can a codicil remedy a gift invalidated because a beneficiary witnessed the original will under s 15 Wills Act 1837?

If the codicil is witnessed by different people, it can validate the gift under the original will.

What happens if a beneficiary who validly benefits under the original will witnesses a later codicil?

Their original gift remains valid, but they cannot benefit under the codicil they witnessed.

How can a codicil confirm an unattested manuscript alteration?

The alteration must have been made before the codicil was executed, and the codicil must expressly refer to the alteration being confirmed.

What is the consequence if a codicil does not expressly identify the unattested alterations it is intended to confirm?

Additional evidence will be needed to establish that the alterations were intended to be confirmed.

How can a properly executed codicil affect an earlier testamentary document that was not properly executed?

Due execution of the codicil can validate the earlier will or codicil.

To what extent can a codicil revoke an earlier will?

It can revoke specific provisions or revoke the entire will.

What is the consequence of a codicil revoking an entire will without making replacement provision?

The testator will be intestate.

How can a codicil revive a previously revoked will?

Under s 22 Wills Act 1837, a codicil can revive a revoked will, although making a new will is preferable.

When can a codicil not revive a previously revoked will?

Where the original will was destroyed.

Does revoking a codicil that previously revoked part or all of a will automatically reinstate the original will's terms?

No. Revocation of the codicil does not automatically revive the provisions of the will that it revoked.

Does revoking a later will that revoked an earlier will automatically reinstate the earlier will?

No. The earlier will is not automatically reinstated.

What is the effect of marriage or civil partnership on an existing will under s 18 Wills Act 1837?

It automatically revokes in full any will or codicil made before the marriage or civil partnership, regardless of the testator's intention.

How can a testator prevent a planned marriage or civil partnership from revoking their will?

Execute the will in contemplation of that specific marriage or civil partnership.

What must a will contain to be made in contemplation of marriage or civil partnership?

It must name the intended future spouse or civil partner, identify the intended ceremony, and expressly state whether the testator intends the will to be revoked by the marriage or civil partnership.

When is a will made in contemplation of marriage or civil partnership ineffective to avoid revocation?

Where it contemplates only a hypothetical marriage, or contemplates marriage to one person but the testator marries someone else.

What should be considered when drafting a will in contemplation of a planned marriage ceremony?

If the will is intended to survive the marriage, instructions should also be taken about what should happen if the ceremony does not take place.

What is the effect of divorce or dissolution of a civil partnership on a will?

The court order confirming the divorce or dissolution partially revokes the will.

How does a will take effect following divorce or dissolution of a civil partnership?

It takes effect as though the former spouse or civil partner had died on the date of the court order, unless the will expressly provides otherwise.

What is the effect of a contrary intention in a will following divorce or dissolution?

The statutory treatment of the former spouse or civil partner as having predeceased the testator is subject to any contrary intention expressed in the will.