8 - Amendments to the Will

Question 1

What options are availble to a testator who wishes to amend their will?

Answer 1

A testator may:
- Make an entirely new will.
- Create a codicil to an existing will (a formal testamentary document amending a will).
- Make manuscript amendments to the original will.

Question 2

What are the risks of a testator not amending the will to reflect their intentions?

Answer 2

Testators are usually advised to make a new will rather than:
- A codicil, due to potential disputes over unclear or ineffective drafting.
- Hand amendments, as these may be unclear or legally complex.

However, a testator should usually be asvised to make a new will rather than making a codicil or hand amendments to their existing will. The cost of making a new will is minimal compared to the costs incurred later if the terms of the will are disputed because of a poorly drafted codicil or because manuscript amendments are unclear or ineffective.

The law governing the effect of manuscript amendments is complex and there is a risk that the overall result is not what the testator would have planned.

Question 3

What are ‘hand alterations’ in the context of amending a will?

Answer 3

Hand alterations refer to manuscript changes made by the testator personally. The effect of these is governed by s 21 Wills Act 1837:

“No obliteration, interlineation, or other alteration made … after the execution … shall be valid or have any effect… except so far as the words …. before such alteration shall not be apparent, unless the alteration shall be executed in like manner as … required for the execution of a will.”

Alterations made by another person are invalid unless made in the presence and at the direction of the testator.

Question 4

What are the different types of manuscript amendments?

Answer 4

The terms “obliteration, interlineation, or other alteration” in s 21 Wills Act 1837 refer to:
- Obliteration: Where the text has been crossed out so that the original text is illegible.
- Interlineation: Where writing has been inserted between the existing lines of the document, often to add something previously omitted.
- Other alterations: These include additions at the end of the will or striking through text that remains legible.

Question 5

What is the general rule regarding post-execution alterations?

Answer 5

The general rule is that amendments made after the will is executed are invalid and unenforceable:
- The alteration has no effect.
- The original wording will be enforced.

If the alteration was made after execution, the alteration is ignored, and the will with the original wording is submitted to probate.

Question 6

What are the presumptions on the timing of alterations to a will?

Answer 6

The law presumes that any alteration was made after execution (rendering it invalid). This presumption can be rebutted by evidence such as:

The personal representatives could produce affidavit evidence of the state and condition of the will at the time of execution, provided by witnesses who accurately recall its appearance.

Question 7

What are ‘attested alterations’ to a will?

Answer 7

Attested alterations refer to manuscript changes that are executed like a will (signed by the testator and two witnesses). Such alterations are valid.
- The witnesses do not need to be the same as those who originally witnessed the will.
- The initials of the testator and witnesses next to the alteration are sufficient for attestation.

Question 8

What should be done to execute manuscript amendments effectively?

Answer 8

A testator should execute manuscript amendments as they would a will (signed by the testator and witnesses).

Alternatively, the testator may:
- Re-execute the amended will as a whole.
- Execute a codicil affirming the manuscript amendments.

Both methods must refer specifically to the manuscript amendments to ensure validity.

Question 9

What are the exceptions to the rule that unattested alterations are invalid?

Answer 9

Unattested alterations are presumed invalid unless:
- A blank space was completed before execution, where the presumption is that it occurred prior to execution.
- Where a blank space has been completed, there is a presumption that the blank was completed before execution. In which case, the alteration would be valid in s21 Wills Act 1837.
- This presumption can be rebutted with internal evidence from within the will or external evidence (e.g., an affidavit of plight and condition).

E.g., A blank space - “I give [£800] to my son”. The will is typed but the sum of £800 has been inserted into the blank space by hand.

Question 10

What happens in cases of obliteration where the original text is not ‘apparent’?

Answer 10

If the original text is obliterated (i.e., not apparent), the obliteration is treated as an intended revocation by the testator, making the alteration effective.

“Apparent” means that the original wording cannot be read by natural means (without the use of technology like infra-red).

Question 11

What is the meaning of ‘apparent’ in the context of obliterations to a will?

Answer 11

“Apparent” means that the original wording can be deciphered by natural means, such as holding the will up to light.

Infra-red technology or extrinsic evidence (such as draft documents) cannot be used unless there is evidence that a third party made the amendment without the testator’s intention.

Question 12

What is ‘conditional revocation’ in the context of a will?

Answer 12

Conditional revocation occurs when the testator makes an obliteration with the intention to revoke only if the substitution (e.g., a new figure) succeeds.

If the substitution fails, extrinsic evidence can be used to determine the original gift, which remains valid.

Question 13

When might manuscript changes be appropriate for a testator?

Answer 13

Manuscript alterations may be appropriate when:
- The amendments do not affect the meaning of the will (e.g., correcting a typo, address change, or name spelling).
- Urgent changes are required, and there is no time to prepare a codicil or new will (e.g., prior to urgent hospital treatment or travel abroad).

All manuscript amendments should be initialled by the testator and witnesses to avoid disputes over timing.

Question 14

Provide a summary of alterations which are and are not given effect to?

Answer 14

Alterations given effect to:
- Made before execution of the will/ codicil
- Obliterations with intent to revoke
- Attested alterations
- Completion of a blank space (presumed to have been completed before execution)
- Subsequently confirmed by re-execution or codicil, with reference to the alteration

Alterations not given effect to
- Made after execution of the will/codicil (provided original gift still apparent)
- Obliterations without intent to revoke
- Obliterations by 3rd parties
- Obliterations as conditional revocation (provided extrinsic evidence of the original gift can be found)
- Unattested alterations (presumed to have been made after execution)

Question 15

What is a codicil, and what are the key requirements for its validity?

Answer 15

A formal testamentary document that amends an earlier will rather than replacing it, meaning both the will and codicil remain valid and are intended to be read together.

A properly drafted will usually replaces earlier wills, ensuring only one valid will at a time, but a codicil modifies specific parts while retaining the original will.

Requirements for validity:
- The testator must have testamentary capacity.
- The testator must have knowledge and approval of the codicil, the will, and any previous codicils it refers to.
- The codicil must comply with Section 9 of the Wills Act 1837.

Codicils must be drafted carefully with reference to the original will to ensure instructions in both documents are consistent and effective upon the testator’s death.

Question 16

When should a codicil be used, and what considerations apply?

Answer 16

Codicils may be used to:
- Create new provisions, such as adding a legacy for a new beneficiary.
- Edit existing provisions, such as changing the value of a pecuniary legacy.
- Revoke provisions, such as removing a beneficiary’s entitlement.

A codicil is suitable for minor changes, but if significant or multiple amendments are needed, it is advisable to draft a new will to avoid inconsistencies. Standalone clauses, or revoked clauses can create complications with the numerical referencing of a will.

While there is no legal limit on the number of codicils a person can make, it is usually recommended to limit them to reduce the risk of confusion.

Historically, codicils were cheaper and easier to make than a new will, but modern technology has largely removed this advantage.

Question 17

What are the key drafting pitfalls to avoid when creating a codicil?

Answer 17

• Failing to expressly note changes to the testator’s name or address.
• Not affirming the parts of the original will that remain unchanged.
• Missing or incorrect cross-references to the date of the original will or earlier codicils.
• Drafting a codicil that refers only to the original will and not to previous codicils.
• Creating a codicil that does not make sense when read alongside the original will or fails to account for changes made by earlier codicils.
• Incorrect clause numbering, particularly when adding freestanding clauses rather than amending existing ones.

Question 18

How should a codicil and the original will be read together to avoid inconsistencies?

Answer 18

A properly drafted codicil should avoid inconsistency or ambiguity when read with the original will.

To ensure clarity:
- The codicil should explicitly confirm or revoke the earlier will (and any previous codicils).
- Without express words of revocation, there is a presumption (rebuttable) that the original will’s terms remain valid unless inconsistent with the codicil (as seen in Lemage v Goodban).

Where discrepancies arise (e.g., incorrect will dates or number of codicils), affidavit evidence can clarify the issues.

Question 19

What is the effect of a codicil republishing a will, and why is this significant?

Answer 19

Executing a codicil republishes the will (and any codicils it refers to), giving them effect as if executed on the date of the codicil.

When applying construction rules to clauses in the original will, the codicil’s date is used.

Example: A clause stating, “I leave the picture hanging in the hallway at the date of my will to the youngest son of my brother Alan” may have different effects depending on changes between the will and codicil dates:
- If Alan has more sons by the codicil date, the youngest at that time benefits.
- If the hallway picture has changed to a less valuable item by the codicil date, the beneficiary inherits the new item.

Careful consideration is essential to ensure the testator’s intention is fulfilled, accounting for the republishing effect of the codicil.

Question 20

How can a codicil correct problems with an earlier testamentary document?

Answer 20

The execution of a codicil re-executes the will (or previous codicils it refers to), allowing correction of problems in earlier documents.

Example:
- If a beneficiary (or their spouse) witnesses a will, s15 Wills Act 1837 denies the beneficiary their inheritance.
- A later codicil witnessed by different people can restore the gift under the will to the original witness, avoiding s15 WA 1837.

S15 WA 1837 applies to codicils as it does to wills.
A witness to a codicil (or their spouse) cannot benefit under either the original will or codicil.

Question 21

How does the due execution of a codicil affect a will or previous codicil?

Answer 21

A codicil can validate a will (or previous codicil) that was not properly executed under s9 Wills Act 1837.
This is not technically a “re-execution” as the original document was never validly executed.

Unattested manuscript amendments in a will or codicil, which are invalid under s21 Wills Act 1837 as deemed to be made after execution, can be confirmed by a later codicil if:
- The amendments were made before the codicil was executed.
- The codicil expressly refers to these amendments.

Otherwise, additional evidence is required to prove the amendments predate the codicil.

Question 22

What are the principles of revocation and revival in relation to wills and codicils?

Answer 22

Revocation:
- A codicil can revoke part or all of an earlier will (or codicil).
- If it expressly revokes a previous will and all codicils, and does not include new terms, the testator will be intestate.

Revival:
- A codicil can only re-publish a currently valid will that has not been revoked.
- A codicil can revive a revoked will if this is the testator’s intention (s22 Wills Act 1837).

Revival of a revoked will is generally discouraged as:
- Testamentary documents made in the interim may cause confusion.
- If the original will was destroyed, it cannot be revived.

If a codicil revokes part or all of a will and the codicil itself is later revoked, the revoked terms of the will are not automatically reinstated.

Question 23

Provide a summary of codicils.

Answer 23

• A codicil is a testamentary document – to be valid it must satisfy the same legal requirements as a will
• A codicil amends rather than replaces an original will
• Executing a codicil re-publishes the will it refers to; this can have unintended consequences re the interpretation of the original will but potentiality correct historic issues
• A codicil may revoke a will in whole or in part
• A codicil may revive a will that was previously revoked (unless it was revoked by way of destruction)
• It is often preferable for a testator to make a new will rather than a codicil due to the risks of inadvertent errors when drafting

Question 24

What is revocation, and what are the methods for revocation by a testator?

Answer 24

Having made a valid will, a testor may devide they want to revoke (cancel) it. A will (or clauses within it) may be revoked by:
- Destruction
- Revocation by a later will
- Revocation by later codicil
- Testator’s subsequent marriage
- Testator’s divorce
- An effective alteration.

Question 25

What are the principles for revocation of a will by destruction under s20 Wills Act 1837?

Answer 25

Revocation by destruction requires:
- A physical act of destruction (e.g., burning, tearing, or otherwise destroying the will).
- An intention to revoke the will.
- Both elements must be present; one without the other is ineffective.

Testator Requirements:
- The testator must have the same testamentary capacity to revoke a will as to make one.
- Writing “revoked” on the will does not qualify as destruction.
- Complete destruction by a testator lacking capacity or intention does not revoke the will, and affidavit evidence would be required to admit a copy to probate.

The intention to revoke can be:
- Absolute, making the revocation effective immediately.
- Conditional, effective only when the condition is met (e.g., upon divorce).

Question 26

How does dependent relative revocation and partial destruction affect the validity of a will?

Answer 26

Dependent relative revocation:
- If a testator amends their will by hand to substitute a new gift, they may intend to revoke the original gift.
- The original gift is only revoked if the amendment is valid.
- If the amendment is invalid, the original gift remains in effect, and evidence of it may be submitted to probate.

Partial destruction: The effect of destruction depends on the remaining parts:
- If the remaining parts allow the will to operate effectively, the revocation is partial.
- If not, the entire will is effectively revoked (e.g., destroying attestation pages including the signature will entirely revoke the will).

Question 27

What are the requirements for revocation of a will by destruction carried out by another person?

Answer 27

If someone other than the testator destroys the will, the revocation is only effective if:
- The destruction is carried out at the direction of the testator.
- The destruction occurs in the testator’s presence.

Additional considerations: The original will, not a copy, must be destroyed for revocation to be effective.

Question 28

What are the presumptions of revocation for missing or damaged wills?

Answer 28

Missing wills:
- If a testator’s will or codicil was in their possession but is missing after their death, it is presumed the testator destroyed it with the intention to revoke.
- This presumption can be rebutted by evidence suggesting otherwise (e.g., Patten v Poulton).

Damaged wills:
- If a will is found damaged, it is presumed the testator damaged it with the intention to revoke.
- Evidence can rebut this presumption if it shows the damage was not intentional or authorised by the testator.

Question 29

How can the presumption of revocation for a missing or damaged will be rebutted?

Answer 29

To rebut the presumption of revocation, those administering the estate must prove:
- A valid will existed at the time of the deceased’s death but was lost or damaged after their death.
- The deceased did not intend to revoke their will.
- The deceased did not carry out or authorise the act of destruction.

If sufficient evidence is presented, a copy of the will may be admitted to probate (NCPR 54).

Question 30

What is express revocation by will, and how does it ensure only one valid will exists?

Answer 30

An express revocation clause is standard in wills to revoke all previous wills and ensure only one valid will exists.

To be effective, specific words of revocation are required:
- Example of ineffective clause: “I hereby declare this to be my last will.”
- Example of effective clause: “I hereby REVOKE all former wills and testamentary dispositions and declare this to be my last will.”

If a testator owns assets abroad, it may be appropriate to have more than one valid will, e.g., one for UK assets and another for foreign assets.
In such cases, the wills must not distribute the same assets or revoke each other.

Question 31

How does implied revocation by will occur, and what complications can arise?

Answer 31

If a later will does not include an express revocation clause, the testator may have multiple valid wills.
- The combined effect of the wills is followed unless inconsistent clauses exist.
- Implied revocation: To the extent of inconsistencies, the later will revokes the earlier, giving priority to the later will.

Example:
- Will 1 (18 months ago): “I GIVE my book collection to Mary.”
- Will 2 (6 months ago): “I GIVE my book collection to Jessica.”
- Result: The later will revokes the earlier clause, and the book collection goes to Jessica.

This can create unintended distributions and complicate construction of documents.
Solicitors avoid such issues by always including an express revocation clause in wills.

Question 32

How can a codicil revoke a will or its clauses, and what are its effects?

Answer 32

A codicil amends rather than replaces a will and may revoke:
- A will or specific clauses within it.
- Typically, it revokes part of a will through express wording, stating the extent to which it revokes or confirms the previous will.

Without express words of revocation, the codicil revokes the will only to the extent of inconsistencies with the will.

Revocation of a will by destruction does not necessarily revoke its codicils.

Example:
- A codicil might state: “By this codicil, I revoke clause 3 of my Will and replace it with: ‘I give £300 to my mother.’ In all other respects, I confirm my will.”

Question 33

What are mutual wills, and how do they differ from other wills?

Answer 33

A mutual will is created through an agreement between two testators:
- Each agrees to make wills on mutually agreed terms.
- Neither testator may amend their will without the other’s consent.

If one testator attempts to revoke their will contrary to this agreement, equity may impose a constructive trust over their property based on the agreed terms, limiting the effect of any new will - in other words, to enforce the original terms of the will.

Example - A married couple might agree that:
- The survivor inherits the first to die’s estate, and after the survivor’s death, everything passes to their children.
- If the survivor later changes their will contrary to this agreement, and it is unconscionable to do so, equity can impose a constructive trust to enforce the original terms.

Mutual wills are rare and should be used with caution.

Question 34

What are mirror wills, and how do they differ from mutual wills?

Answer 34

Mirror wills are common for couples and mirror each other.

Example: Each will leaves the estate to the survivor of the couple, and if the other does not survive, the assets pass to their children.

Unlike mutual wills:
- Executing a mirror will does not imply an agreement not to revoke it later.
- No constructive trust is imposed.
- The survivor of the couple remains free to revoke their mirror will at any time before the death of either party.

Question 35

Provide a summary of Revocation by destruction, later will, and codicil.

Answer 35

A will may be revoked by:

• Destruction by the testator of the original with an intention to revoke
• Destruction by a third party if at the testator’s direction and in their presence
• An express revocation clause included in a later will
• Express wording in a codicil
• Implication if a later will or codicil contain no express words of revocation – but the earlier will is only revoked to the extent it is inconsistent with the later will or codicil
• Presumption if the original document is missing

If a testator has signed a mutual will their property will be subject to a constructive trust should they attempt to revoke or change that will at a later date. There is no obligation to avoid revocation where a couple make mirror wills.

Question 36

How does marriage or entering a civil partnership affect the validity of a will under the Wills Act 1837?

Answer 36

Under s 18 WA 1837, marriage automatically revokes in full any prior will or codicil, regardless of the testator’s intention.
- Applies whether the testator marries someone of the same or opposite sex.
- Under s 18B WA 1837, the same applies when a testator enters into a civil partnership.

The impact is significant: many clients are unaware of this provision.
- Advisers must identify whether a client plans to marry soon.
- Clients should also be informed of s 18’s effect in case of future changes in their circumstances.

Question 37

How can a will be preserved despite marriage or entering a civil partnership?

Answer 37

A will can avoid being revoked by s 18 WA 1837 or s 18B WA 1837 if it is made in contemplation of marriage or civil partnership.

Requirements for validity:
- Must name the future spouse/civil partner.
- Must identify the intended ceremony.
- Must expressly state whether the testator intends the will to be revoked upon marriage/civil partnership.

Invalid situations:
- A will made in contemplation of a hypothetical marriage/civil partnership.
- A will made in contemplation of marriage/civil partnership to one person but the testator marries/enters a partnership with someone else.

Question 38

What are effective and ineffective clauses in a will made in contemplation of marriage or civil partnership?

Answer 38

Effective clause example:
- “At the time of making this will I expect to enter a civil partnership with [ ] and intend that this my will shall not be revoked by my civil partnership with [ ].”
- Preserves the will upon the specified civil partnership.

Ineffective clause example:
- “I intend that this my will shall not be revoked by any subsequent civil partnership that I choose to enter.”
- Fails because it is not made in contemplation of a specific civil partnership.

Question 39

What should a testator consider when making a will in contemplation of marriage or civil partnership?

Answer 39

• A testator may make a will before the marriage or civil partnership to ensure provision for their future spouse or partner. E.g., a testator may want to execute the will before the ceremony so their will is finalised before they travel abroad on honeymoon.
• If the will includes a clause ensuring it survives after the marriage, the testator should clarify the effect if the ceremony does not take place (e.g., due to death or separation).
• The testator should specify whether the will and any revocation of previous wills are conditional on the marriage/civil partnership.
• In the absence of specific wording, the new will takes effect even if the ceremony does not happen, unless stated otherwise.

Question 40

How can the testator’s intention be clarified in a will regarding its effect after marriage or civil partnership?

Answer 40

A testator can include a clause to clarify whether the will takes effect immediately or only upon the marriage or civil partnership.

For example, a clause may state: “At the time of making this will, I expect to marry [ ] and intend that this will shall not be revoked by my marriage to [ ].” This keeps the will effective even if the marriage happens later.

Another clause could specify: “This will shall only be effective upon my marriage to [ ].” This ensures the will is not effective until the marriage takes place.

Question 41

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

Answer 41

If a married testator divorces their spouse or a civil partnership is dissolved, the court order (final order) automatically revokes parts of the will.

Under s.18A WA 1837 (s.18C for civil partnerships), the will takes effect as if the former spouse or civil partner had died on the date of the court order, unless the will expressly states otherwise.

This means:
- The appointment of the former spouse/civil partner as executor or trustee is no longer valid.
- Any gift in the will to the former spouse/civil partner fails.

It is important to advise clients about this effect when drafting their will.

Question 42

What happens if a gift to a former spouse or civil partner fails due to divorce or dissolution?

Answer 42

• If a gift to a former spouse/civil partner fails after divorce or dissolution, the gift may pass to an alternative beneficiary if named.
• If no alternative beneficiary is specified, the gift may pass under the general gift of residue.
• In some cases, the failure of the gift may lead to a partial or full intestacy.
• The effect of this is subject to any contrary intention expressed in the will, meaning the testator can specify that the former spouse or civil partner should inherit despite the divorce.

Question 43

How does s.18A WA 1837 impact the appointment of executors and gifts in a will following divorce or dissolution?

Answer 43

The effect of s.18A WA 1837 (s.18C for civil partnerships) depends on the will’s wording:
- If multiple executors are named, the remaining executor can still act.
- If the former spouse was the sole executor, an administrator will be appointed by statutory order.

For example, if a testator divorces their spouse and the will names the spouse as sole executrix, the spouse’s appointment is revoked. If an alternative executor (e.g., the testator’s brothers) is named, they will be appointed instead.

In terms of gifts, if the spouse was to receive the residue of the estate, the gift fails, and the testator may die partially intestate unless a substitution is specified in the will.

Question 44

What is the effect of divorce or dissolution on a will, and how should a testator approach partial revocation of a will?

Answer 44

Section 18A/C only applies to wills made before divorce or dissolution; wills made after are unaffected:
- The testator can make provisions for their former spouse/civil partner in a new will after divorce or dissolution.
- Section 18A/C does not impact the former spouse/civil partner’s right to claim under the Inheritance (Provision for Family and Dependants) Act 1975.
- It is usually better for a testator to make a new will after divorce, as the partial revocation by statute may not reflect their wishes.
- Family lawyers often refer clients to private client departments to update their wills.

Question 45

Provide a summary of revocation by marriage and divorce.

Answer 45

· A will (and any codicil to it) is revoked in full by a testator’s subsequent marriage or civil partnership under s 18 and s 18B WA 1837

· It is possible to avoid revocation by making a will in contemplation of a particular marriage/civil partnership

· A testator’s divorce or the dissolution of their civil partnership by virtue of s18A and s 18C WA 1837 has the effect of treating the former spouse/civil partner as having died before the testator - this is a partial revocation of the will

· S.18A/C apply to all references to the former spouse/civil partner in the will and renders their appointment as an executor and/or trustee ineffective, as well as any gift to them void

· S.18A/C only affect wills/codicils made before the divorce/dissolution and do not affect any made subsequently

Question 46

What are the criteria for incorporating unexecuted documents into a will?

Answer 46

• A will is usually contained in one executed document, with changes made by codicil or a new will.
• Unexecuted documents can be incorporated into a will if they are clearly referenced in the executed will.
• This includes incorporating STEP provisions and letters of wishes, which provide additional guidance or instructions.

Question 47

What are the criteria for successfully incorporating an unexecuted document into a will?

Answer 47

To successfully incorporate an unexecuted document into a will, the following criteria must be met:
- The document must exist at the time the will is executed (or when a later codicil is made, as the codicil republishes the original will).
- The will must refer to the document as being in existence at the time of execution.
- The document must be clearly identified in the will.

Question 48

What are examples of successful and unsuccessful incorporation of an unexecuted document into a will?

Answer 48

Successful Example:
- “I leave my collection of antique dolls to each of the people named in the list now to be found in my safe.”
- This clause satisfies the criteria, as the list is referenced as existing at the time of execution.

Unsuccessful Example:
- “I leave my collection of antique dolls to each of the people to be named in a list which I will write before my death.”
- This does not satisfy the criteria, as the list does not exist at the time of execution and has not been referred to as existing.

Question 49

How is a document successfully incorporated into a will, and what are the risks?

Answer 49

• If a document is validly incorporated into a will, it becomes part of the will even if it does not comply with the Wills Act 1837 (s.9).
• The document will become public along with the will when admitted to probate.
• Clients may mistakenly believe the document will remain private, but this is not the case.
• While incorporating a document like a list of personal possessions may seem appealing, it poses risks such as failure to meet conditions or loss of the document before death.
• It is safer to include such a list as a schedule in the will itself.

Question 50

How can STEP provisions be incorporated into a will or trust deed?

Answer 50

STEP provisions (from the Society of Trust & Estate Practitioners) are nationally recognised administrative powers commonly incorporated into wills or trust deeds:
- These provisions can be incorporated by reference, meaning the provisions do not need to be copied in full.
- For example, a will might state: “The standard provisions and all of the special provisions of the Society of Trust and Estate Practitioners (2nd Edition) shall apply.”
- This allows for the inclusion of comprehensive provisions without the need for lengthy, technical clauses.

Question 51

What is the role and nature of letters of wishes in a will?

Answer 51

• A letter of wishes may be drafted by the testator when a trust is created under their will.
• These letters express how the testator would like the trustees to manage their discretionary powers.
• While common in practice, letters of wishes are not legally binding and serve only as guidance.
• The letters do not form part of the will or the trust created under it, and there is no intention for them to be incorporated into the will.

Question 52

Provide a summary of incorporating documents into a will.

Answer 52

· It is possible for unexecuted documents to be incorporated into a will by reference.

· The document must be clearly identified in the will, in existence when the will is executed and the will must refer to the document as being in existence at execution.

· Any document successfully incorporated into a will is admitted to probate along with the original will.

· Clients should be advised against incorporating additional documents into their will because of the practical issues that may arise if the conditions for incorporation are not satisfied or the document cannot be located following death.