Alterations and amendments to wills - Effect of alterations after execution

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Overview

Altering a will after it's been signed is a significant topic for SQE1 FLK2 exam candidates. It blends key concepts of testamentary law with practical application. Understanding the details of post-execution amendments is vital for exam success and effective probate practice. This article delves into the legal frameworks, necessary procedures, and common challenges of modifying wills after they've been executed.

Legal Framework for Post-Execution Amendments

Statutory Guidelines

The Wills Act 1837 outlines the rules for creating and changing wills in England and Wales. Section 21 addresses amendments made after execution:

  1. Alterations are not valid unless executed with the same requirements as the original will.
  2. Changes must be signed by the testator and witnessed by two people in the testator's presence.

This section sets strict standards to protect the integrity of wills.

Presumptions and Proof

When changes appear in a will, it’s assumed they were made after execution. The responsibility is on the party wishing to enforce the change to prove it was valid. The case of Re Swindin's Estate (1958) demonstrates the need for strong evidence to challenge this presumption.

Judicial Interpretation

Courts rigorously apply post-execution alteration rules. In Re Goods of Blewitt (1880), it was affirmed that even minor changes need full adherence to execution formalities to be valid, reflecting the courts' focus on upholding testamentary intentions.

Valid Methods of Alteration

Re-execution

Re-executing involves signing the will again with the desired changes, creating a new will. This must follow all the formalities of the Wills Act 1837:

  1. The will must be written.
  2. Signed by the testator or someone directed by them in their presence.
  3. The testator must intend for their signature to give effect to the will.
  4. The signature must be acknowledged in front of two witnesses.
  5. Each witness must sign the will in the testator's presence.

Codicils

A codicil changes part of a will without creating a new one. It must be executed like a will. While useful for specific alterations, multiple codicils can cause confusion.

Example: Alteration via Re-execution

Consider Mrs. Thompson, who wants to add a grandchild as a beneficiary. She follows these steps:

  1. Instructs her lawyer to draft a revised will.
  2. Ensures all original provisions remain, adding the grandchild.
  3. Arranges for two independent witnesses.
  4. Signs the new will in front of both witnesses.
  5. Confirms the witnesses sign the will in each other's presence.
  6. Marks the old will as revoked to avoid confusion.

This process ensures valid alterations by meeting legal criteria.

Risks of Informal Alterations

Case Study: Risks of Handwritten Changes

In Re Booth (1926), handwritten changes were made without following formalities. Despite clear intentions, these were deemed invalid, highlighting pitfalls of informal amendments:

  1. Invalidity: Unexecuted changes are legally ineffective.
  2. Partial Intestacy: Invalid changes might render parts of the estate intestate.
  3. Litigation: Informal changes can lead to disputes.

Unintended Outcomes

Even well-meaning changes can fail legally, leading to:

  1. Beneficiary Disputes: Informal changes may cause conflicts.
  2. Administration Problems: Executors might struggle to fulfill wishes.
  3. Tax Problems: Invalid changes can impact tax planning.

Judicial Attitude Toward Alterations

Compliance Standards

English courts have traditionally enforced strict compliance, as shown in Marley v. Rawlings (2014). There's ongoing discussion about adopting a more flexible approach, as seen elsewhere.

Rectification and Interpretation

When dealing with unclear alterations, courts may:

  1. Rectify: Correct a will to fulfill the testator's intentions if errors occurred.
  2. Interpret: Analyze the will to discern the testator's intent, potentially validating non-compliant alterations.

Practical Considerations for Legal Professionals

Estate Planning Practices

  1. Regular Reviews: Encourage clients to update wills regularly.
  2. Formal Changes: Recommend formal channels for any amendments.
  3. Record Keeping: Keep thorough records of client instructions.
  4. Witnessing Procedures: Establish strict protocols for witnessing alterations.

Mitigating Risks

  1. Client Education: Highlight risks of informal changes.
  2. Flexible Drafting: Create wills allowing for adjustments.
  3. Avoiding Conflict: Address potential disputes clearly in wills.

Conclusion

Understanding alterations to wills after they’ve been executed requires familiarity with the laws, case precedents, and practical factors. For SQE1 FLK2 candidates, mastering this subject remains important due to its intersection with fundamental testamentary principles. The rigorous rules set by English courts highlight the need for careful compliance to ensure clients’ wishes are honored and legal conflicts avoided.

Key points to remember:

  1. Post-execution changes need the same formalities as the original.
  2. There’s an assumption against late changes unless proven otherwise.
  3. Re-execution and codicils are the main methods for valid changes.