Learning Outcomes
After reading this article, you will be able to identify when an alteration to a will is valid, explain the statutory requirements for amending or revoking a will, and apply the doctrine of dependent relative revocation. You will also be able to distinguish between valid and invalid amendments, advise on re-execution, and recognise the exam pitfalls relating to altered or revoked wills.
SQE1 Syllabus
For SQE1, you are required to understand the rules and consequences of altering, revoking, and re-executing wills. As you revise this topic, focus on:
- the statutory formalities for valid amendments to a will after execution (Wills Act 1837, ss.9 and 21)
- the legal effect of revocation by destruction, subsequent will, or marriage/civil partnership
- the doctrine of dependent relative revocation and its practical application
- the process and effect of re-executing an altered will
- how to advise on the validity of amendments, revocations, and codicils in exam scenarios
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 to be valid after execution?
- What is the legal effect if a testator crosses out a legacy in a will but the original words are still visible?
- How can an invalid alteration to a will be made effective?
- What is the doctrine of dependent relative revocation and when might it apply?
Introduction
Wills are formal documents and the law imposes strict requirements for any changes made after execution. For SQE1, you must be able to determine when an alteration, revocation, or re-execution is valid, and apply these principles to practical and exam scenarios.
Alterations and Amendments to Wills
Formalities for Valid Alterations
Any change to a will after it has been executed must comply with the same formalities as the original will.
Key Term: alteration An alteration is any change, addition, or deletion made to a will after it has been executed.
Section 21 of the Wills Act 1837 states that an alteration made after execution is only valid if it is executed in the same way as a will under section 9. This means:
- The testator must sign or acknowledge the alteration in the presence of two witnesses present at the same time.
- The witnesses must sign or acknowledge their signatures in the presence of the testator.
It is common practice for the testator and both witnesses to initial the alteration in the margin, but full signatures are also valid.
Key Term: re-execution Re-execution is the process of re-signing and re-witnessing a will, making all amendments valid as if the will were newly executed.
Alterations Made Before Execution
If an alteration is made before the will is executed, it is valid provided the testator had knowledge and approval of the change. However, there is a presumption that any alteration visible on the face of the will was made after execution unless there is clear evidence to the contrary, except for filling in blank spaces.
Key Term: presumption of timing The law presumes that any alteration to a will was made after execution unless proved otherwise, except for filling in blank spaces.
Invalid Alterations and Their Consequences
If an alteration is made after execution but is not properly witnessed and signed, it is invalid. In this case:
- If the original wording is still legible (even with a magnifying glass), the original words stand and the alteration is ignored.
- If the original wording is completely obliterated and cannot be read, that part of the will is treated as blank and has no effect.
Key Term: obliteration Obliteration is the act of making words in a will unreadable, usually by crossing out or covering them.
Codicils as an Alternative to Alteration
A codicil is a separate document executed with the same formalities as a will, used to amend, add to, or partially revoke an existing will.
Key Term: codicil A codicil is a supplemental document executed with the same formalities as a will, used to amend, add to, or partially revoke an existing will.
Worked Example 1.1
A testator crosses out a legacy of £3,000 to his niece and writes "£7,000" above it, initialling the change but without any witnesses present. After his death, the original wording is still visible.
Answer: The alteration is invalid because it was not properly witnessed. The original legacy of £3,000 stands, and the change to £7,000 is ignored.
Re-execution of Altered Wills
If a will has been altered without proper formalities, the testator can make the alteration effective by re-executing the will. This involves the testator and two witnesses signing the will again, following the requirements of section 9. The re-executed will is treated as if it was made on the date of re-execution.
Worked Example 1.2
A testatrix wishes to change her executor. She crosses out the old executor's name and writes in a new one, but forgets to have the change witnessed. She later realises this and, with two witnesses present, signs the will again and the witnesses sign as well.
Answer: The alteration is now valid because the will has been re-executed with the required formalities. The new executor will be appointed.
Revocation of Wills
A will can be revoked in several ways, as set out in the Wills Act 1837:
- By making a new will or codicil that expressly or impliedly revokes the earlier wills.
- By marriage or civil partnership (unless the will was made in contemplation of that event).
- By destruction with the intention to revoke (e.g., burning, tearing, or otherwise destroying the will).
Key Term: revocation Revocation is the act of cancelling a will so that it no longer has legal effect.
Revocation by Destruction
For revocation by destruction to be effective, there must be both a physical act (such as burning or tearing) and an intention to revoke at the time of destruction. Accidental destruction or destruction without intent to revoke does not revoke a will.
Worked Example 1.3
A testator, angry with his son, tears his will into pieces but later regrets it and tapes it back together. He dies without making a new will.
Answer: If the testator did not intend to revoke the will absolutely, the court may find that the revocation was conditional. The will may still be admitted to probate if the court is satisfied the intention to revoke was not absolute.
Doctrine of Dependent Relative Revocation
If a testator revokes a will on the basis that a new will is valid, but the new will is invalid, the court may restore the original will if it is clear the testator would not have revoked it but for the mistaken belief. This is known as the doctrine of dependent relative revocation.
Key Term: dependent relative revocation A doctrine allowing a revoked will to be revived if the revocation was conditional on a mistaken belief, such as the validity of a new will.
Worked Example 1.4
A testatrix destroys her will after signing a new one, believing the new will is valid. The new will is later found to be invalid due to lack of witnesses.
Answer: The court may apply the doctrine of dependent relative revocation and admit the destroyed will to probate, as the testatrix did not intend to die intestate.
Partial Revocation and Obliteration
English law does not generally allow partial revocation by destruction. If a specific part of a will is obliterated so that it cannot be read, and the act was intended to revoke that part, the obliterated words are treated as revoked and have no effect. If the original words can still be read, they remain valid.
Exam Warning
For SQE1, always check whether an alteration was made before or after execution, and whether it was properly witnessed. If the exam scenario states that the original wording is still visible, the alteration is likely to be invalid and the original words will stand.
Revision Tip
If a testator wants to change their will, advise them to execute a codicil or re-execute the will. Never rely on handwritten changes unless they are properly witnessed.
Key Point Checklist
This article has covered the following key knowledge points:
- Valid alterations to a will after execution must be executed with the same formalities as a will (ss.9 and 21 Wills Act 1837).
- Alterations made before execution are valid if the testator had knowledge and approval.
- Invalid alterations are ignored if the original wording is still legible; if not, the words are treated as blank.
- Re-execution of a will validates all amendments as if the will were newly executed.
- Revocation of a will can occur by subsequent will, codicil, marriage/civil partnership, or destruction with intent to revoke.
- The doctrine of dependent relative revocation may revive a revoked will if the revocation was conditional or based on mistake.
- Codicils are a practical way to amend a will and must be executed with the same formalities as a will.
Key Terms and Concepts
- alteration
- re-execution
- presumption of timing
- obliteration
- codicil
- revocation
- dependent relative revocation
