Alterations and amendments to wills - Effect of alterations ...

Learning Outcomes

This article explains the effect of alterations and amendments to wills after execution, including:

• the core statutory framework under s.21 Wills Act 1837 and its relationship with s.9 execution formalities
• how to distinguish between alterations made before and after execution and the different validity rules that apply
• the formal requirements for valid post-execution changes, including marginal signatures, memoranda, and properly executed codicils
• the legal effect of invalid or informal amendments, especially obliterations, interlineations, and pencil notes on the will
• when an obliterated clause is treated as revoked and when the original wording continues to govern the disposition
• how presumptions about the timing of alterations operate and the types of evidence that can rebut them in probate
• the consequences of defective alterations for gifts, residue, and possible partial intestacy in typical SQE1 problem questions
• practical exam techniques for spotting valid and invalid amendments in narratives, wills extracts, and multiple-choice options
• risk-management points a competent practitioner should consider, such as avoiding beneficiary-witness issues and preferring codicils to manuscript changes

SQE1 Syllabus

For SQE1, you are required to understand the effect of alterations and amendments to wills after execution, with a focus on the following syllabus points:

• 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.

1. What formalities must be followed for an alteration to a will after execution to be valid?
2. If a testator crosses out a clause in a will after execution and does not have the change witnessed, what is the legal effect?
3. How does the law treat an obliteration in a will where the original wording is no longer legible?
4. 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.

Key Term: alteration
A change, addition, deletion, interlineation, or obliteration made to a will after it has been signed and witnessed.

Key Term: execution (of a will)
The process of signing and witnessing a will in accordance with the Wills Act 1837.

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.

S.21 sets a two-limbed structure:

• as a general rule, no obliteration, interlineation or alteration made after execution is valid or has effect; but
• an alteration will be effective if either:
  • it is executed “in like manner” as a will; or
  • the words or effect of the will before the alteration are not apparent.

This means a post-execution change needs either fresh compliance with s.9 formalities, or the original wording must have been obliterated so completely that it is no longer apparent on the face of the original will.

Key Term: presumption of post-execution alteration
The legal assumption that an alteration was made after execution unless proved otherwise.

Key Term: interlineation
New words inserted into the text of a will between existing lines.

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.

In practice, this is commonly done by the testator and both witnesses initialling or signing in the margin opposite, or immediately adjacent to, the specific alteration so it is unequivocally clear what has been attested. Good practice is to mark each alteration separately and ensure the initials/signatures are so positioned that they clearly relate to that alteration.

S.21 also recognises an alternative approach: instead of signing next to each alteration, the testator can add a memorandum (typically at the end of the will) referring to the identified alterations, and have the memorandum duly executed with two witnesses.

Key Term: memorandum (for alterations)
A signed statement added to a will identifying post-execution alterations, executed with two witnesses, which can validate those alterations without separate marginal signatures.

Important points of detail:

• The two witnesses must both be present at the same time when the testator signs or acknowledges the alteration or the memorandum.
• While initials are commonly used, full signatures are also acceptable.
• Avoid using a beneficiary (or their spouse/civil partner) as a witness to any alteration or codicil; s.15 Wills Act 1837 renders their benefit void in the instrument they witness.

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.

The presumption can be displaced by credible evidence such as:

• an attesting witness testifying that the alteration was present at the time of execution
• internal indicators (for example, consistent paper/typing; integrated pagination) demonstrating the change pre-dated execution
• properly placed initials by testator and both witnesses contemporaneous with execution.

There is a limited counter-presumption for insertions that merely complete a blank left in a will form (for example, a date or name left blank in a pre-printed form); in such a case, completion is presumed to have been before execution unless the facts suggest 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 “natural means” (for example, the naked eye or with a magnifying glass). Photocopies or digital reconstructions do not make the original “apparent”; the test is the state of the original paper will itself.

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. The court cannot rely on a copy or a draft to fill the blank for probate purposes.

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.

Practical consequences of an illegible obliteration include:

• a specific gift may fail and fall into residue
• if part of the residuary clause is obliterated beyond recovery, there may be a partial intestacy
• disputes can arise over the testator’s apparent intentions with no textual anchor to resolve them.

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. Using a pen of the same colour as the original text does not matter; clarity and compliance with s.9 are what count.

Alternatively, a memorandum at the end of the will that identifies the specific alterations and is signed by the testator and both witnesses is sufficient. If some alterations are not identified in that memorandum and are not otherwise attested in accordance with s.21, those omissions will remain invalid.

Key Term: interlineation
New words inserted into the text of a will between existing lines.

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.

A codicil typically “republishes” the will. In effect, the will and codicil are read together and, for many purposes of construction, the will is treated as if it had been made on the date of the codicil. This can be useful to align dates or address intervening circumstances (though a will generally speaks from death as to property).

Pencil Alterations and Intention

Alterations made in pencil are often treated in practice as deliberative or tentative. Where a will is in ink and the change is in pencil, there is a practical presumption that the pencil change was not intended to be final. That said, if a pencil alteration is executed with full s.21 formalities (testator and two witnesses), it can still be legally effective; the issue is one of intention and proof. Where there is any doubt, use a codicil or re-execute the 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.

“Apparent” means legible on the original using natural means such as the naked eye or a magnifying glass. Resort to ultraviolet light, chemical means, or reliance on earlier photocopies or drafts will not make the original wording “apparent” for probate.

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.

Key Term: dependent relative revocation
A principle allowing the court, in limited circumstances, to treat a revocation as conditional on a new disposition taking effect; if the condition fails, the revocation can be disregarded.

Dependent relative revocation (DRR) can sometimes be argued where a testator obliterates words intending only to replace them with a new (but invalid) provision. However, because s.21 expressly treats a total obliteration as effective (rendering the clause blank) “except so far as the words or effect of the will before such alteration shall not be apparent,” the scope for DRR is very limited in partial obliteration cases. If the original text is no longer apparent, the court cannot revive it for probate. DRR is more commonly relevant where a whole will is revoked in reliance on a new will that turns out to be invalid.

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.

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.

Worked Example 1.4

A will is typed and signed in ink. After execution, the testator writes a pencil note in the margin: “change £2,000 to my niece to £3,000,” and initials in pencil. No witnesses attest the change. What is the effect?

Answer:
The alteration is invalid for want of s.21 formalities. The pencilled note will be treated as deliberative. The original £2,000 legacy stands.

Worked Example 1.5

A pre-printed will form left a blank for the date. The date was later inserted in the same handwriting as the attestation clause but there are no separate initials by the testator or witnesses next to the date. What is the effect?

Answer:
Insertion of a date to complete a blank in a will form is presumed to have been made before execution unless evidence shows otherwise. No further formality is required; the date stands.

Worked Example 1.6

A testator makes three post-execution changes on the face of a will. Later, they add a memorandum at the end: “I confirm the alteration of clause 3 from £1,000 to £2,000,” and the testator and both witnesses sign below it. There is no mention of the other two changes and no marginal initials. What is the effect?

Answer:
Only the alteration identified in the executed memorandum (clause 3 to £2,000) is validated. The other two changes are ineffective unless they separately comply with s.21 or can be proved to pre-date execution.

Worked Example 1.7

A testator executes a codicil that increases a pecuniary gift to Beneficiary B. B’s spouse acts as one of the codicil’s witnesses. What is the effect on B’s gift?

Answer:
The codicil is valid, but B’s benefit under that codicil fails because B’s spouse witnessed it (s.15 Wills Act 1837). B may still take any benefit conferred in the original will or in any other instrument he or his spouse did not witness.

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 (provided the will as a whole was duly executed).

From a procedural standpoint:

• The Probate Registry commonly requires an affidavit or statement of truth from an attesting witness, or another person present, if the will bears alterations whose timing or validity is unclear.
• If the will appears mutilated, torn, or shows signs of obliterations or missing attachments (for example, staple or paperclip marks), the Registry may call for an affidavit of “plight and condition” explaining the state of the will and the circumstances of any changes.

Key Term: affidavit of plight and condition
Evidence filed in the probate process explaining the physical state of a will (for example, alterations, tears, staple marks) and their provenance.

If the Registry is not satisfied that an alteration was validly made, it will ignore it and admit the will to probate in its unaltered form, except to the extent that obliterations render original wording not apparent.

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.

Other practical risks include:

• Uncertainty about which words the testator intended to alter (particularly where handwriting overlaps the printed text or changes are scattered without initials).
• The possibility that a witnessed alteration inadvertently voids a gift to a witness or their spouse/civil partner under s.15 Wills Act 1837.
• Pencil or ambiguous notes being treated as deliberative rather than dispositive.

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.

In addition to implementing changes, a codicil ordinarily republishes the will. This can be useful if the testator wants the will to be treated as speaking from a later date for construction, while remembering that, as to property, a will generally speaks from death. A codicil also creates a separate instrument, which can be admitted to probate with the will and reduces the risk of damaging the original will with interlineations and scoring-out.

Practical drafting points:

• Identify the will precisely (date and parties), and the exact clauses to be amended.
• Use clear language to revoke or replace targeted provisions.
• Avoid appointing, or taking as a witness, anyone whose gift is affected by the codicil (to avert s.15 issues).

Practical Points for SQE1

• Establish whether the alteration was made before or after execution. If before, no extra formalities are needed; if after, insist on s.21 compliance or disregard the change.
• For post-execution changes, look for signatures or initials of the testator and two witnesses near the change, or an executed memorandum identifying the change.
• Remember “natural means”: if original text remains apparent on the original, it continues to govern despite an invalid alteration.
• Treat illegible obliterations as revocations of the affected text. Consider the knock-on effects (for example, falling into residue or intestacy).
• Warn clients off pencil changes and margin notes. Use a codicil or re-execute the will instead.
• Be alert to s.15: a beneficiary (or their spouse/civil partner) who witnesses an alteration or codicil will forfeit any gift under that instrument.
• If a will bears unexplained alterations, expect the Probate Registry to seek affidavits; be prepared to prove timing and validity, or to accept probate of the unaltered text.

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.
• S.21 Wills Act 1837 permits validity either by executing the alteration “in like manner” as a will or, where the original text is no longer apparent, by treating the clause as revoked (blank).
• The presumption is that alterations on the face of a will were made after execution; the burden of proof is on the person asserting pre-execution.
• 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.
• A memorandum at the end of the will, duly executed with two witnesses and clearly identifying the alterations, can validate those alterations.
• Pencil changes are generally treated as deliberative and should not be relied upon; a codicil is the safer route.
• Codicils must be executed like wills and often republish the will; avoid using a witness who is, or is married to, a beneficiary under that codicil.
• The Probate Registry may require affidavits (including an affidavit of plight and condition) to explain and assess alterations.

Key Terms and Concepts

• alteration
• execution (of a will)
• presumption of post-execution alteration
• interlineation
• obliteration
• memorandum (for alterations)
• dependent relative revocation
• affidavit of plight and condition
• probate
• codicil