WE 9 - Alterations

Question 1

What is required to successfully bring a document into a will?

Answer 1

a) The document must exist when the will is executed (or at the time a later codicil is made – because the codicil re-publishes the original will)

b) The will must refer to the document as being in existence at the time of execution

c) The document must be clearly identified in the will

Question 2

Where a document is brought successfully into a Will, will it be public on probate?

Answer 2

Yes

Question 3

Are letters of wishes as to how the trustees of the estate should manage their discretionary powers legally binding?

Answer 3

No

Question 4

Are letters of wishes as to how the trustees of the estate should manage their discretionary powers public?

Answer 4

No

Question 5

What are the methods of amending a will?

Answer 5

• an entirely new will
• a codicil to an existing will (a formal testamentary document amending a will)
• make manuscript amendments to their original will.

Question 6

Are Post-execution alterations to a will valid. S.21

Answer 6

No

Question 7

Are alterations to a will presumed to be Post-execution alterations?

Answer 7

Yes, unless there are blank spaces left to be filled in.

Question 8

How can a testator make a valid alteration to their will?

Answer 8

Needs to be signed by the testator and two witnesses (initials are sufficient)

Question 9

If the testator has obliterated the wording (so it cannot be read), is that part of the will still valid?

Answer 9

The obliteration is treated as having been made by the testator with an intention to revoke and the alteration will be effective unless there is an indication that the testator still wishes to make a gift to the obliterated individual.

Question 10

What happens to the gifts that are obliterated?

Answer 10

Follow the residue clause if there is one, if not goes through intestacy

Question 11

What happens if wording is obliterated and replaced by new wording?

(need not be written over the obliteration but must show that a gift was intended to individual obliterated).

Answer 11

• The original wording is taken unless it can be shown that the amendment was valid.
• Extrinsic evidence is permitted to check what the original wording was.

Question 12

What is a codicil?

Answer 12

A codicil is a formal testamentary document that amends an earlier will, rather than replaces it, and both documents remain active and are intended to be read together.

Question 13

What rules apply to the validity of a codicil?

Answer 13

Same as for a Will. A testator must have:
- testamentary capacity,
- knowledge and approval (of the codicil, and the will and any previous codicils referred to) and
- comply with s.9 Wills Act 1837

Question 14

What effect does a Codicil have on the date of a Will?

Answer 14

Codicil this acts to ‘republish’ the will (and any codicils) to which it expressly refers. The will is given effect to as if it had been executed on the date on which the codicil was executed.

Question 15

If a codicil revokes all/part of a will, and the codicil itself is then subsequently revoked, would this automatically re-instate the terms of the will that had been revoked by the codicil?

Answer 15

No

Question 16

How can a Will be revoked?

Answer 16

• ‘burning, tearing or otherwise destroying’ it
• provided there is also an intention to revoke the will.

NOTE: just writing - “revoked” will not be enough, it needs to be physically destroyed.thanks

Question 17

If another person destroys the will is this effective?

Answer 17

No unless it is at the direction of the testator and in his presence.

Question 18

What happens if If a testator is known to have made a will or codicil which they kept in their possession, but after the testator’s death the original document is missing or destoryed?

Answer 18

presumed to have been on purpose unless there is evidence to suggest otherwise (Patten v Poulton)

Question 19

How would a presumption of destruction be overcome?

Answer 19

They would have to show:

-a valid will existed when the deceased died but was lost/damaged after death

-the deceased did not intend to revoke their will​

-the deceased did not carry out or give instruction for the act of destruction​.

Question 20

What happens if a new Will is created that does not revoke the old one?

Answer 20

To the extent they are inconsistent, the later will impliedly revokes the earlier.

Question 21

What are mutual Wills?

Answer 21

Where one testator agrees with another testator to each make a will on terms agreed between them. Both testators also agree that neither of them will amend their will without the consent of the other. If a testator attempts to revoke their will, contrary to the previous agreement, equity may impose a constructive trust over that testator’s property on the terms previously agreed and limit the effect of any new will.​

Question 22

What are Mirror Wills?

Answer 22

Couples’ Will’s are the same

Question 23

What is the effect of an alteration made before execution of the Will

Answer 23

Valid

Question 24

What is the effect of an alteration made after execution of the Will where original wording can be seen (strike through)

Answer 24

Strike through invalid and so original wording still valid

Question 25

What is the effect of an alteration made after execution of the Will where original wording can be seen (strike through) and:

• the Will is re-executed

OR

• A codicil is made

Answer 25

Amendments will be valid only if express reference is made to the amendments.

Question 26

What is the effect of an alteration made after execution of the Will where original wording can be seen (strike through) and initialled by the testator and two witnesses?

Answer 26

Valid (need not be the same witnesses that attested the original Will)

Question 27

What is the effect of filling in a blank space?

Answer 27

Presumed occurred before Will executed

NOTE: it is the presumption that they occurred before execution that makes them valid, not just the fact that there were blank spaces to fill in

Question 28

What is the effect of an alteration made after execution of the Will where the original wording CANNOT be seen (Obliterated)

AND

there is no evidence that the testator didn’t intend to revoke

Answer 28

treated as intended to revoke - therefore effective in altering the Will

Question 29

How can you tell if wording has been obliterated when there is no evidence that the testator didn’t intend to revoke AND no evidence that someone else made the obliteration?

Answer 29

Can’t be read by natural means (holding to light is OK)

Question 30

What happens if there has been an obliteration and there is evidence that the testator did not intend to revoke OR that someone else made the obliteration?

Answer 30

extrinsic evidence can be used to see what the wording was

Question 31

What happens when there has been an obliteration and another term entered instead?

Answer 31

If the new wording is valid (i.e. attested etc.) then it takes effect.

If the new wording is not valid, then the original wording takes effect and extrinsic evidence can be used.

Question 32

When can extrinsic evidence be used?

Answer 32

• obliterations without the intent to revoke
• obliterations by 3rd parties
• Conditional revocations (obliteration with a new term added)

Question 33

What post execution amendments are valid?

Answer 33

• Amendments made before execution
• Obliterations with intent to revoke (natural means)
• Attested alterations
• Completion of black spaces
• confirmed by re-execution of Codicil