Learning Outcomes
After studying this article, you will be able to identify when an alteration to a will after execution is legally valid, explain the statutory requirements for post-execution amendments, distinguish between valid and invalid changes, and apply these rules to SQE1-style scenarios. You will also understand the risks of informal amendments and the consequences for the distribution of an estate.
SQE1 Syllabus
For SQE1, you are required to understand the effect of alterations and amendments to wills after execution. Focus your revision on:
- the statutory requirements for valid alterations to a will after it has been executed
- the consequences of failing to comply with the formalities for post-execution amendments
- the difference between alterations made before and after execution
- the legal treatment of obliterations, interlineations, and codicils
- how to apply these principles to practical scenarios and MCQs
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What formalities must be followed for an alteration to a will after execution to be valid?
- If a testator crosses out a clause in a will after execution and does not have the change witnessed, what is the legal effect?
- How does the law treat an obliteration in a will where the original wording is no longer legible?
- What is the difference between a codicil and an alteration made in the body of a will?
Introduction
When a testator wishes to change their will after it has been validly executed, strict rules apply. The law requires that any alteration made after execution must comply with the same formalities as the original will. Failure to do so can result in the alteration being ignored, with the original wording remaining effective. This article explains the statutory requirements, practical consequences, and common pitfalls relating to post-execution amendments to wills.
Alterations to Wills After Execution: The Statutory Rule
Section 21 of the Wills Act 1837 governs the effect of any alteration, interlineation, or obliteration made in a will after it has been executed. The law draws a clear distinction between changes made before and after execution.
Key Term: alteration A change, addition, deletion, or obliteration made to a will after it has been signed and witnessed.
The Formalities for Valid Alteration
Any alteration made after execution is only valid if it is executed in the same way as a will. This means:
- The testator must sign or acknowledge the alteration in the presence of two or more witnesses present at the same time.
- Each witness must attest and sign the alteration in the presence of the testator.
Key Term: execution (of a will) The process of signing and witnessing a will in accordance with the Wills Act 1837.
If these formalities are not followed, the alteration will not take effect, and the original wording will remain valid—unless the original wording is no longer apparent (see below).
Presumption About Timing
Where an alteration appears on the face of a will, it is presumed to have been made after execution unless there is clear evidence to the contrary. The burden is on the person seeking to rely on the alteration to prove it was made before execution or that the formalities were followed.
Key Term: presumption of post-execution alteration The legal assumption that an alteration was made after execution unless proved otherwise.
The Effect of Invalid Alterations
If an alteration is made after execution but is not properly executed and witnessed, the law treats it as ineffective. The original wording of the will stands, provided it can be read by ordinary means (for example, with a magnifying glass).
If the original wording is not apparent—because it has been completely obliterated or made illegible—the clause is treated as revoked, and the will is admitted to probate as if the obliterated passage were blank.
Key Term: obliteration The act of erasing, covering, or otherwise making the original wording of a will illegible.
Key Term: probate The legal process by which a will is proved and accepted as valid by the court.
Valid Methods of Amendment
Properly Executed Alteration
A testator may make a valid alteration by signing or initialling the change in the presence of two witnesses, who also sign or initial near the alteration. The initials must be close enough to the change to make it clear what is being attested.
Codicil
A codicil is a separate document executed with the same formalities as a will. It can be used to amend, add to, or revoke provisions in an existing will. Codicils are often used for minor changes but must clearly refer to the original will.
Key Term: codicil A formal document executed like a will that amends, adds to, or revokes part of an existing will.
Obliterations and the "Apparent" Rule
If a testator obliterates wording in a will (for example, by heavy scoring out or covering with ink) and the original wording is still apparent, the original wording remains valid. If the original wording is not apparent, and the obliteration was made by the testator with the intention to revoke, the clause is treated as revoked.
If the testator obliterates wording and writes new wording above it, but the new wording is not properly executed and witnessed, the original wording will stand if it is still apparent. If not, the clause is blank.
Worked Example 1.1
A testator crosses out a legacy of £5,000 to Alex in their will and writes "£10,000 to Alex" above the crossed-out words. The testator and two witnesses do not sign or initial the change. What is the effect?
Answer: The alteration is invalid. If the original wording ("£5,000 to Alex") is still legible, Alex receives £5,000. If the original wording is not apparent, the legacy fails and Alex receives nothing.
Worked Example 1.2
A testator uses a black marker to cover a clause in their will, making the original wording completely illegible. No signature or witness attestation is made. What is the effect?
Answer: The clause is treated as blank and is not given effect. The obliteration is effective as a revocation of that part of the will, even though the formalities were not followed, because the original wording cannot be recovered.
The Role of Evidence and Presumptions
If there is a dispute about when an alteration was made, the court will consider all available evidence. If the alteration completes a blank space in a will, it is presumed to have been made before execution. Otherwise, the presumption is that it was made after execution.
If the alteration is shown to have been made before execution, it is valid without further formality.
Risks of Informal Amendments
Handwritten changes, interlineations, or deletions made after execution but without proper formalities are generally ignored. This can lead to:
- The original wording remaining effective, even if it does not reflect the testator's current wishes.
- Partial intestacy if a clause is obliterated and the original wording is not apparent.
- Disputes among beneficiaries and possible litigation.
Exam Warning
If a testator makes handwritten changes to a will after execution without proper attestation, do not assume the changes are valid. The original wording will usually stand, unless it is no longer legible.
Codicils: A Safer Way to Amend
A codicil is often the safest way to amend a will. It avoids the risks of informal changes and can be used to make minor or major amendments. Like a will, a codicil must be signed and witnessed by two people present at the same time.
Worked Example 1.3
A testator wishes to change their executor. Instead of altering the will, they execute a codicil appointing a new executor, signed and witnessed by two people. Is this valid?
Answer: Yes. The codicil is a valid amendment to the will and will be admitted to probate with the original will.
Practical Points for SQE1
- Always check whether an alteration was made before or after execution.
- If after execution, look for signatures or initials of the testator and two witnesses near the change.
- If in doubt, treat the original wording as effective unless it is not apparent.
- Advise clients to use a codicil or execute a new will for any changes after execution.
Key Point Checklist
This article has covered the following key knowledge points:
- Any alteration to a will after execution must comply with the same formalities as the original will to be valid.
- If a post-execution alteration is not properly executed and witnessed, the original wording stands if it is still apparent.
- If the original wording is not apparent, the clause is treated as blank and is not given effect.
- Codicils are a safe and effective method for amending a will and must be executed with the same formalities as a will.
- Informal handwritten changes after execution are generally invalid and can lead to disputes or partial intestacy.
Key Terms and Concepts
- alteration
- execution (of a will)
- presumption of post-execution alteration
- obliteration
- probate
- codicil
