Will Amendment

Question 1

What three ways can a testator amend their Will?

Answer 1

The can

• make manuscript amendments to their original Will
• make a codicil to an existing Will
• revoke their existing Will

Question 2

When will an alteration by another person to a Will not be invalid?

Answer 2

Where it is intended by the testator and made in their presence

Question 3

What is an obliteration?

Answer 3

The text has been crossed out in such a way that the original text is illegible

Question 4

What is interlineation?

Answer 4

Where writing has been inserted between the existing lines of the document, often to add something that was previously omitted

Question 5

What are other alterations?

Answer 5

Include additions added at the end of the Will, a strike through of text which is still legible

Question 6

What is the general rule in relation to post-execution alterations?

Answer 6

They are invalid and unenforceable

Original wording is given effect to

Question 7

What is the general rule in relation to pre-execution alterations?

Answer 7

Provided made with testator’s knowledge and approval, it would be valid

Question 8

What is the presumption in relation to timings on alterations?

Answer 8

Rebuttable presumption that an alteration was made after execution

Question 9

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

Answer 9

By PRs producing affidavit evidence of the state and condition of Will at time of execution as according to witnesses

Question 10

How can an alteration be made to be valid?

Answer 10

If it is executed like a Will ie signed by testator and two witnesses in accordance with s 9 WA)

Question 11

What exception is there to rule that unattested alterations are invalid with blank spaces?

Answer 11

• where blank space has been completed, there is presumption this occurred prior to execution
• timing presumption can be rebutted by internal evidence from within Will or external evidence

Question 12

What exception is there to rule that unattested alterations are invalid with obliterations?

Answer 12

• if original wording is not apparent because it has been obliterated, covered over or cut out, the obliteration is treated as having been made the testator with an intention to revoke the alteration will be effective
• apparent means the words cannot be deciphered by natural means (reading or holding it to light, but not infra red technology) and without need for extrinsic evidence (draft wills)

Question 13

What if a testator makes obliterations but had no intention to amend revoke the gift/wording?

Answer 13

Then extrinsic evidence can be used to establish original gift and infra-red technology would be allowed

Original wording would be valid

Question 14

What is the effect of obliteration with conditional intent for revocation?

Answer 14

Extrinsic evidence to prove original wording would be permitted.

If original gift can be ascertained, then unless alteration proved to be valid, it will be given effect to

Question 15

In what situations are manuscript changes appropriate?

Answer 15

• the amendments have no impact on the interpretation or meaning of the Will eg typos, change to beneficiary’s address or correction to spelling of a name
• the changes must be made urgently and a codicil or new Will cannot be prepared in time

Question 16

What is a codicil?

Answer 16

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 17

Do the rules relating to the validity of a Will also apply to codicils?

Answer 17

Yes so T must have testamentary capacity, knowledge and approval, and comply with s 9 WA

Question 18

When can codicils be used?

Answer 18

• to create new provisions in a Will eg add a legacy for a new beneficiary
• edit existing provisions in a Will eg change the value of a pecuniary legacy
• revoke provisions in a Will eg remove a particular beneficiary’s entitlement

Question 19

What should codicils do with regards to previous Wills?

Answer 19

For avoidance of doubt, codicil should expressly state extent to which it confirms or revokes the earlier Will and any earlier codicils

Question 20

What happens in the absence of express provision in a codicil that addresses revocation of previous Will?

Answer 20

Presumption that the terms of the original Will remain where possible

Codicil will only revoke an earlier Will to the extent there is inconsistency between them

Question 21

When a codicil is executed, what happens to the original Will aside from any revocation?

Answer 21

It is republished meaning the Will which the codicil refers to is given effect to as if it had been executed on the date on which the codicil was executed

Question 22

Can beneficiaries under codicil or will witness codicil?

Answer 22

No - any legacy to them would be void

Question 23

How can a codicil incorporate post-execution manuscript amendments on Will?

Answer 23

By referencing them in the codicil itself

Question 24

Can a codicil revoke previous Will?

Answer 24

Yes either in part or in full - opens risk of T dying intestate

Question 25

Can a codicil revive a will that has previously been revoked?

Answer 25

Yes

Question 26

If a codicil revokes a Will is itself revoked, does that revoked Will get re-instated?

Answer 26

Not automatically no

Question 27

How can a testator revoke their Will?

Answer 27

• destruction/an effective alteration
• revocation by a later Will
• revocation by later codicil
• T’s subsequent marriage
• T’s divorce

Question 28

How can a will be revoked by destruction?

Answer 28

• T has testamentary capacity
• T has intention to revoke the Will
• T burns, tears or otherwise destroys it (must be physical act)

Question 29

What happens if T destroys Will but lack testamentary capacity to do so?

Answer 29

Will is still valid and affidavit evidence would be required for copy of Will to be admitted to probate

Question 30

Must T destroy original Will or can a copy suffice?

Answer 30

Must be original

Question 31

What is the effect of T only destroying parts of Will?

Answer 31

Other parts will remain

Question 32

What happens if another person destroys the Will?

Answer 32

This will be of no effect unless at the direction of T in his presence

Question 33

What presumption arises where a Will is missing?

Answer 33

T is presumed to have destroyed their Will with an intention to revoke it unless evidence is presented to the contrary

Question 34

What presumption arises where a Will is damaged?

Answer 34

T is presumed to have carried out the act of damage/destruction with intention to revoke unless otherwise stated

Question 35

Who has the burden of rebutting presumption of revocation in case of missing/damaged wills and how do they do it?

Answer 35

Those administering the estate bear the burden

They must 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 36

When will revocation of previous Will in a new Will be effective?

Answer 36

Where express words of revocation are used

Question 37

When will it be appropriate for the testator to have more than one valid Will?

Answer 37

Where they own assets abroad

Question 38

What happens if there is a new Will that does not have a revocation clause?

Answer 38

Both Wills are valid.

To the extent they are inconsistent, the later Will impliedly revokes the earlier Will, so the new will is given priority

Question 39

What is a mutual Will?

Answer 39

One where T agrees with another T to each make a Will on terms agreed between them

Question 40

What happens if T tries to revoke a mutual will?

Answer 40

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 41

Does a mirror will come with the same constructive trust as mutual will if one party revokes?

Answer 41

No - either party can revoke Will at anytime without trust arising

Question 42

What is the effect of s 18 Wills Act with wills on marriage?

Answer 42

All wills prior to the marriage are revoked in full on marriage even if the testator does not intend this

Same if civil partnership

Question 43

How can the effect of s 18 of Will being revoked on marriage be avoided?

Answer 43

If the Will is drafted in contemplation of marriage

Must name future spouse and identify intended ceremony. Must expressly confirm T does not want Will to be reduced on marriage/civil partnership

Question 44

Will a Will in contemplation of marriage take effect even if marriage never takes place?

Answer 44

Yes - provided not express wording to the contrary

Question 45

What happens to Wills on divorce?

Answer 45

Former spouse or civil partner will be treated as if they have died on date of divorce/dissolution

So former spouse cannot inherit or be executor

Subject to any contrary intention in Will that states to the contrary

Only effects wills made prior to divorce

Question 46

If a former spouse is disinherited on divorce, is there any other way they can bring a claim against the estate?

Answer 46

Yes - still potential claim under Inheritance (Provision for Family and Dependants) Act 1975