Alteration (Amendment)

of Wills

IntroductionWills Act has a convoluted sectionconcerning amendments and

alterations AFTER EXECUTION

Section 16 Wills Act

No obliteration, interlineation, or otheralteration made in any will after theexecution shall be valid or have any

effectUNLESS alteration executed in

like manner as required

for execution of the will

Note - Section 16 concernsalterations AFTER EXECUTION

Alteration BEFORE Execution is not governed

by Statute

Alterations, Obliterations etcThese are Amendments, changes to original

Tprovisions of the will executed by T

Obliteration - words blotted out,crossed through or covered, so

that words no longer discernible.Total or Partial; Other wordsor figures may be written overor substituted for obliterated

wordsInterlineation - words/fuguresentered between lines of Will

- extends to words/figures inserted

on lines or imported into text viaasterisk and other interpolation

"Any other alteration"- where text before alteration

is still discernible

Alteration before executionOnce alteration made beforeWill with T INTENDING to

incorporate it in will at time of execution then alteration

validNo need for such alterations

to be specifically executed

If INTENTION was not for

alteration to be final - then not valid

Rebuttable PresumptionsPresumption that

Alterations in pencil showmere deliberation and not

final intention

Hawkes v Hawkes(1828)

Presumption that Alterations in Ink show settled final intention

Hawkes v Hawkes(1828)

Presumption that alterationnot attested by signature

of T/W were made after execution of the WILL

and ALL OTHER CODICILS(not just will alone)

Best to ensure thatchanges are separately

attested by both T andWitnesses in margin next to

alteration

In the Goods of Adamson

(1875)

Intrinsic EvidenceDates can rebut

Birch v Birch(1848)

[where dates rebutted presumption]

[Where T gave instructions toson to prepare will leaving blank

spaces for several legacies tobe gifted, which T would himself

fill in before execution; T laterexecuted will, after death, willfound in envelope with seals

broken -legacies filled in inT's handwriting but with multiple

obliterations, interlineationsand other amendments, some

in black ink, some in red ink.Not attestation of alterations.

Envelope also had two detaillist, black and red ink, one

same date as will, other after;

Court considered presumption,and differentiated gifts,

admitting those in blackdated same date as will,

and refused those in red]

Same ink as rest ofdocument and served

to complete the sense of the

text - can rebut

In the Goods

of Cadge (1868)

Extrinsic EvidenceMay be statements

from T himself which indicates

alterations occured beforeexecution

Statements must beenmade before or at time of

execution,not subsequently

Other person may giveaffidavit evidence -

drafter of will, attestingwitness or other person

present at time

Rebutting PresumptionsPresumptions may be

rebutted by either intrinsicevidence /extrinsic evidence

Where alterations are minor withlittle impact on will - easy to rebut

In the Goods of

Hindmarsh(1866)

Alteration after ExecutionConfirmation of Will

(Republication)Validated by Signatures

Confirmation of Will(Republication)

T executes will and latermakes alteration (which

is not attested by relevant signatures) and then later

subsequently confirms(republishes) will - re-executionwill validate previous alterationsmade once T intended alterationsto be incorporated in will upon

confirmation In the Goods of Shearn

(1880)

If T confirms alteration byduly executed codicil whichmakes reference to the Will

In the Goods of Sykes(1873)

NATURE of alteration is

always valid nonethelss -confirmation alone wont

immediately rebut presumptions

Codicil which rebuts

presumption has to rebut not only that alteration madebefore execution of will butbefore execution of codicil

in question

In the Goods of Heath

[1892]

Procedure when certainunattested alterationsappear in Will/Codicil

Registrar will requireaffidavit from executor or attesting witness or other

person present at execution

to provde that amendmentsmade prior to execution beforeadmitting such amendments to

probate Waived traditionally if - alterations trivial and ofno practical importance

-alterations verified byinitials of attesting

witnesses-alterations confirmed by

re-execution of will or execution of codicil

Rule 68.15 CPR

Validated by Signaturesif alteration made after execution,can only be validated by signatureof T/W attesting to the alteration

as if executing will

"..if the signature of thetestator and the subscription of the witness be made in

the margin, or on some other part of the will oppositeor near to such alteration, or at the foot or end of or

opposite to a memorandum referring to such alteration,and written at the end

or some other part of the will.."

Initials can be given instead of usual

signature -

In the Goods of Blewitt(1880)

[where T altered, and made

initials in margin and 2 wwrote initials in margin as well

- held duly incorporated

Where W initial changesbut not that of testator

- amendments not includedin probate

Re White[1991] Ch1

Usually prudent to effectsubstantial alterations viaexecution of codicil or new

will - reserve signatures/initialsto minor changes of will

(may not be a feasible option if time is of essence)

Part of Will not "apparent"If alteration makes any

part of the will not apparent

then that part deemed revokedin T intended to revoke it

Where T accidentally spillsink on will, obliterating part

of it, not operate to revokeaffected partTest of whether words "apparent" is whether

optically discernible on the faceof the will; Whether they can

be seen with naked eye (without

extrinisic aids)Townley v Watson

(1844)

Probate will be granted of willbut parts not apparent will

be read as blank spaces

Courts have held thatwords not apparent where -Will framed by brown paperheld up to to light tp discernwords beneath paper pasted

over textFfinch v Combe [1894]

USe of magnifying glass

In the Goods of Brasier[1899]

Removing a slip of paper pasted over

wordsIn the Goods of Horsford

(1874)

Applying chemical to willto remove ink stains

Conditional ObliterationNote that conditional obliterationworks in a similar way to conditial

revocation - if T's intention is torevoke conditionally - revocation noteffect despite obliteration if condition

not fulfilled

If condition not fulfilled, obliterated part has to be

ascertained to form probate -court can employ variety of methods

to discover obliterated part

So where T changes 10K to 3K without the relevant attestaton

and intention is to substitute 10K with 3K

then conditional obliteration and if thesubstitution fails for lack of formalitythen 3K 10K reverts.. if however T'sintention was to revoke absolutely

then probate will put blank space for10 K

In the Goods ofItter [1950]