Learning Outcomes
This article explains key SQE1 exam issues on alterations, revocation, and re-execution of wills, including:
- the statutory formalities in ss.9 and 21 Wills Act 1837 for valid post-execution alterations, and how to apply those requirements to typical multiple-choice and scenario questions;
- how to distinguish alterations made before execution from those made afterwards, and how presumptions about timing, legibility, and knowledge and approval affect validity;
- the consequences of invalid alterations, including when original wording prevails, when a blank is created, and how codicils or re-execution can cure defects;
- the practical operation of codicils and re-execution in republishing a will, updating the date from which it speaks, and regularising previous informal changes;
- the methods of revoking wills, the requirements for effective revocation by destruction, and the impact of marriage, civil partnership, divorce, and dissolution;
- the doctrine of dependent relative revocation, with emphasis on spotting conditional revocations and mistaken beliefs about new wills in exam problems;
- strategies for analysing “plight and condition” facts, interpreting probate registry concerns, and avoiding common SQE1 traps involving obliteration, partial revocation, and invalid witnessing.
SQE1 Syllabus
For SQE1, you are required to understand the rules and consequences of altering, revoking, and re-executing wills, with a focus on the following syllabus points:
- 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. In practice, the probate registry scrutinises the “plight and condition” of the will: unsigned alterations are presumed made after execution unless proved otherwise; attempted destruction requires explanation. Where doubts arise, affidavit evidence under the Non-Contentious Probate Rules (NCPR) may be required to establish due execution (r 12), timing and effect of alterations (r 14), or to account for marks suggesting attempted revocation (r 15).
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. The statute allows two ways to meet the formalities for post-execution alterations:
- by placing the testator’s and both witnesses’ signatures or initials “opposite or near” the alteration on the face of the will; or
- by adding a signed and attested memorandum (typically at the end of the will) specifically referring to the alteration(s). If a memorandum is used, it must identify all alterations intended to take effect—any unmentioned, unattested change remains invalid.
Note that s.9 requirements apply equally where a third party signs at the testator’s direction, but this must occur in the testator’s presence and be attested by two witnesses present together. The witnesses are attesting the testator’s signature (or acknowledgment) of the alteration itself—not merely the will generally—so ensure their signatures appear close to the change or the memorandum clearly links to it.
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.
In practice, the probate registry may accept evidence (for example, from attesting witnesses) confirming that the alteration was present at execution and that the will still “reads naturally” after the change. Where the presumption is not rebutted, the alteration is treated as a post-execution change and must satisfy s.21 to be effective.
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.
Obliteration does not “write in” new wording. If a testator writes replacement words above an obliterated clause but fails to execute the alteration in accordance with s.9, the replacement wording is ineffective; the obliterated text is treated as revoked only if the original words are not apparent, leaving a blank in the will.
From a probate standpoint, the registry will look first to see whether the original words can be made out “by natural means,” which can include careful inspection and magnification. If they can, those words are admitted; if not, the will is proved with a blank where the obliteration lies. A blank usually means the gift fails and falls into residue—unless a substitution clause or statutory saving (e.g., s.33 WA 1837 for gifts to issue) applies.
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.
Well-drafted codicils:
- identify the will they amend by date and testator’s details;
- clearly state which provisions are changed and which remain;
- include an attestation clause meeting s.9 formalities.
Codicils can cure defects caused by witnessing issues. For example, if a beneficiary (or their spouse/civil partner) witnessed the original will, invalidating a gift under s.15 WA 1837, a codicil can re-make that gift to them (properly witnessed by disinterested witnesses). A codicil also “republishes” the will: for interpretive purposes, the will is treated as made at the date of the codicil. This can affect questions of ademption (e.g., “my car”) and construction “as regards people” (e.g., “my eldest son”) because a republication resets the operative date.
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.
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.
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.
Re-execution repackages the whole instrument—including any text appearing on its face at that time—as a validly executed will. In effect, it revives and republishes the will and the alterations within it. This can change the “date from which the will speaks” for certain interpretive rules (while a will generally speaks from death as to property, construction “as regards people” is at the date of execution; re-execution or codicil updates that date).
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.
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.
Express revocation clauses are standard drafting practice and avoid uncertainty from implied revocation. For example: “I revoke all former wills and testamentary dispositions.” Implied revocation arises only to the extent of inconsistency—identical gifts in a later will do not revoke earlier identical gifts in a former will (they simply restate them).
Revocation by operation of law occurs on marriage or formation of a civil partnership unless the will shows it was made in contemplation of marriage/civil partnership to a named person and intended not to be revoked by that event. By contrast, divorce/dissolution does not revoke the whole will: under s.18A WA 1837, appointments and gifts to the former spouse or civil partner fail as if they had predeceased, but the remainder of the will stands. Mere separation has no effect on the will.
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.
Marks suggesting attempted revocation (burns, tears, staple/pin holes where pages may have been removed) must be explained to the probate registry, usually by affidavit (NCPR r 15). Writing “cancelled” across a will is not enough. Partial destruction can have either a partial revocation (e.g., obliterating an entire dispositive clause so it cannot be read) or, where a material part is destroyed (such as signatures), a complete revocation.
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.
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.
The doctrine is fact-sensitive. It applies where the revocation is conditional or “dependent” on the new instrument taking effect. It does not assist where revocation occurs by operation of law (e.g., marriage) because that revocation is statutory rather than conditional upon any belief. It can apply to revocation by destruction or by a later written revocation that fails to meet s.9 formalities.
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.
Care must be taken to distinguish “partial revocation” by obliteration (leaving a blank) from attempted variation by writing new words above. The latter will only operate if the alteration complies with s.21 and s.9. Without compliance, the new words are ignored and the obliterated text either remains (if still legible) or is treated as blank.
Worked Example 1.5
A will leaves “£5,000 to the Irchester Cricket Club.” The testator later scribbles heavily over the name of the club so that it is illegible, and writes “Borough Juniors FC” above, without any witnesses present.
Answer:
The obliteration revokes the original specific donee only if its name cannot be read; the replacement words are ineffective unless the alteration is executed in accordance with s.9. The gift becomes a blank and fails, so the £5,000 falls into residue.
Worked Example 1.6
A will gives “£50,000 to my friend Dan,” but Dan’s spouse witnesses the will. The gift fails under s.15. The testator later executes a codicil, properly witnessed, that states “I confirm all dispositions in my will except I now give £50,000 to my friend Dan.”
Answer:
The codicil validly re-makes the gift to Dan. The previous invalid gift does not revive, but the codicil’s fresh, properly witnessed gift takes effect.
Worked Example 1.7
A will made in 2022 leaves all to a partner. The testator marries in 2023 and dies in 2025 without making a new will. The 2022 will contains no clause showing it was made in contemplation of marriage to the named partner.
Answer:
The 2022 will is revoked by marriage under s.18. The estate passes by intestacy unless a later valid will or codicil is found.
Further Practical Points on Probate Review
- Where a will contains alterations that are not clearly executed, the probate registry will presume they were made post-execution (unless filling a blank), and will require evidence if the applicant asserts pre-execution changes (NCPR r 14).
- If the will is undated or bears inconsistent dates, affidavit evidence may be required to establish the true date of execution (NCPR r 14(4)).
- If there are suspicious circumstances affecting knowledge and approval (for example, beneficiary involvement in preparation or a blind/illiterate testator), the registry may require evidence of knowledge and approval (NCPR rr 13, 16). A tailored attestation clause often avoids that additional step.
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. Distinguish strictly between: (i) changes made pre-execution (presumptively valid with knowledge and approval); (ii) post-execution changes needing s.9 compliance; and (iii) obliterations leaving blanks with no “new words” unless executed.
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. Remind clients that marriage/civil partnership can revoke a will unless contemplated on the face of the instrument; divorce/dissolution revokes gifts and appointments to the former spouse/civil partner only, leaving the rest intact.
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, but there is a presumption they were made after execution unless proved otherwise.
- 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 and republishes the will on the re-execution date.
- Revocation of a will can occur by subsequent will, codicil, marriage/civil partnership, or destruction with intent to revoke; divorce/dissolution revokes gifts and appointments to the former spouse/civil partner only.
- 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; they can re-make gifts invalidated by s.15 WA 1837.
- The probate registry will scrutinise alterations and attempted revocations and may require affidavit evidence under the NCPR to establish timing, intention, and knowledge and approval.
Key Terms and Concepts
- alteration
- re-execution
- presumption of timing
- obliteration
- codicil
- revocation
- dependent relative revocation