Alterations and amendments to wills - Effect of alterations before execution

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Overview

Understanding how alterations to wills before execution affect their validity is vital for legal professionals, especially those preparing for the SQE1 FLK2 exam. This area connects key principles of will validity, testator intent, and evidence. Understanding the legal framework and potential challenges of pre-execution changes helps ensure the validity of wills and reduces future disputes. This article explores the topic, equipping candidates with the necessary skills for exam success and professional practice.

Legal Framework for Pre-Execution Changes

The Wills Act 1837, particularly Section 21, governs changes made before a will's execution. This legislation outlines how such changes should be handled to remain valid.

Statutory Requirements

According to Section 21 of the Wills Act 1837:

  1. Alterations must be executed in the same manner as the will.
  2. The testator's and witnesses' signatures must appear near the change.
  3. Alternatively, the change can be noted in a memorandum at the end of the will, signed by the testator and witnesses.

These requirements highlight the need for proper formalities to prevent fraud in the alteration process.

Judicial Interpretation

Courts have strictly enforced Section 21, requiring clear evidence of compliance. In Re Goods of Blewitt (1880) 5 PD 116, signatures rather than initials were deemed necessary for validating a change.

Presumption of Post-Execution Alteration

A common principle is the assumption that a will's changes occur after execution, known as the "temporal presumption," which underscores the importance of the testator's signature as a final act.

Challenging the Presumption

Though this presumption is strong, it can be contested with compelling evidence such as:

  • Witness Testimony: Statements confirming the timing and intent of changes.
  • Correspondence: Communication from the testator about the alteration.
  • Physical Evidence: Use of similar ink and handwriting as the original.
  • Expert Analysis: Professional examination to determine change timing.

In Re Sykes [1974] 1 WLR 1096, the court accepted a solicitor’s file notes as evidence of pre-execution alterations.

Practical Tips for Will Drafting

Understanding the principles around pre-execution changes requires careful drafting and attention. Legal professionals should advise clients to:

  1. Use Clear Language: Prevent disputes with precise wording.
  2. Review Drafts Carefully: Ensure all changes are understood before the will is signed.
  3. Ensure Proper Attestation: Confirm all changes are signed in front of witnesses.
  4. Document Intentions: Record discussions and reasons for changes.
  5. Acknowledge Changes: Note alterations in the will, including a memorandum.
  6. Ensure Witness Signatures: Witnesses should sign or initial changes.
  7. Utilize Technology: Use document systems that track changes.

Case Studies and Examples

Case Study: In Re Goods of Smith (1890)

A will's alteration was challenged after the testator failed to sign a change before execution. The court upheld the presumption of post-execution changes due to the absence of proper signature, affirming that unapproved alterations are invalid.

Example: Documenting Pre-Execution Changes

Consider Mrs. Smith, who intended to leave her estate to her children, with a specific gift for her eldest added later. The solicitor:

  1. Drafted a clause for the gift.
  2. Inserted this into the document.
  3. Added a dated note explaining the change.
  4. Ensured it was signed by all parties.

This approach ensures clear evidence of pre-execution alterations, reducing dispute risks.

Challenges

Challenges with pre-execution changes include:

  1. Informal Alterations: Testator-made changes without formalities can be invalid, as seen in Re Goods of Gunstan (1882).
  2. Proving Changes: Lack of documentation makes proving timing difficult.
  3. Partial Invalidity: Courts may invalidate certain changes without affecting the entire will, as in Re Swords [1954].

Comparative Perspective

English law is stricter compared to regions like California or Scotland, where less formal validation processes are acceptable, showing the need for stringent adherence to procedures.

Conclusion

Addressing pre-execution alterations to wills involves a mix of legal requirements and practical strategies. For legal professionals and exam candidates, a solid grasp of this topic is indispensable for ensuring legal compliance and preparing effectively for the SQE1 FLK2.

Key points include:

  1. Strict requirements under the Wills Act 1837.
  2. The weight of the presumption of post-execution changes.
  3. The importance of clear documentation and execution procedures.