Learning Outcomes
After reading this article, you will be able to explain the legal requirements for valid alterations and amendments to wills, including the use and effect of codicils. You will understand the formalities for codicils, their legal impact (including republication), and common exam pitfalls. You will also be able to apply these principles to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the rules governing alterations and amendments to wills, and the use and effect of codicils. As you revise this topic, focus on:
- the formal requirements for valid amendments and codicils under the Wills Act 1837
- the legal effect of codicils, including republication and their interaction with the original will
- the consequences of improper execution or witnessing of amendments or codicils
- the impact of codicils on the interpretation and tax treatment of wills
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 a codicil satisfy to be valid?
- What is the legal effect of a codicil on the date of a will?
- If a testator wants to change a specific legacy in their will, what are the two main lawful methods?
- What is the effect if a beneficiary or their spouse witnesses a codicil?
Introduction
When a testator wishes to change their will, they may do so by making a new will, amending the existing will, or executing a separate document called a codicil. For SQE1, you must know the strict rules for valid amendments and codicils, the legal effect of codicils (including republication), and common exam pitfalls.
Alterations and Amendments to Wills
Amendments Made Directly on the Will
A testator may attempt to change a will by crossing out, adding, or substituting words. The law distinguishes between alterations made before execution and those made after execution.
Key Term: alteration A change made to the text of a will, such as crossing out, adding, or substituting words.
Alterations Before Execution
If an alteration is made before the will is signed and witnessed, it is valid as long as the testator had knowledge and approval of the change. However, there is a presumption that any alteration was made after execution unless proved otherwise.
Alterations After Execution
If an alteration is made after the will has been executed, it is only valid if it is executed in the same way as a will: signed by the testator and attested by two witnesses. If not, the original wording stands unless it is no longer apparent (i.e., cannot be read by ordinary means), in which case the altered part is treated as revoked.
Key Term: obliteration The covering or erasure of words in a will so that the original wording cannot be read by ordinary means.
Key Term: interlineation The insertion of new words between lines of an existing will.
Worked Example 1.1
A testator crosses out "£5,000 to my niece" and writes "£10,000 to my niece" above, then initials the change but does not have it witnessed. Is the alteration valid?
Answer: No. The change was made after execution and was not properly witnessed. The original wording ("£5,000 to my niece") remains effective.
Exam Warning
If you see a scenario where a will has handwritten changes, always check if the changes were properly executed and witnessed. If not, the original wording usually prevails.
Codicils: Amending a Will by Separate Document
A codicil is a separate document that amends, adds to, or revokes part of an existing will. It is often used for minor changes, such as appointing a new executor or changing a legacy, without rewriting the entire will.
Key Term: codicil A testamentary document executed with the same formalities as a will, used to amend, add to, or partially revoke an existing will.
Formalities for a Valid Codicil
A codicil must comply with all the formal requirements of a will under the Wills Act 1837:
- It must be in writing.
- It must be signed by the testator (or at their direction, in their presence).
- The signature must be made or acknowledged in the presence of two witnesses present at the same time.
- Each witness must sign or acknowledge their signature in the testator's presence.
If these requirements are not met, the codicil is invalid and any attempted amendment will fail.
Worked Example 1.2
A testator executes a codicil changing the residuary beneficiary. The codicil is signed by the testator but witnessed only by one person. Is the codicil valid?
Answer: No. The codicil is invalid because it was not witnessed by two people present at the same time. The attempted change has no effect.
Effect of a Codicil: Republication
A valid codicil republishes the will as of the date of the codicil. This means the will is treated as having been executed on the date of the codicil, which can affect:
- The property included (e.g., assets acquired after the original will but before the codicil may now pass under the will).
- The class of beneficiaries (e.g., a gift to "my children" may include children born before the codicil but after the original will).
- The application of statutory rules (e.g., marriage after the original will but before the codicil may not revoke the will if the codicil is made after marriage).
Key Term: republication The legal effect by which a valid codicil causes the will to be treated as executed on the date of the codicil.
Worked Example 1.3
A will made in 2010 leaves "my house" to a friend. In 2018, the testator executes a codicil confirming the will. The testator bought a new house in 2016. Which house passes under the will?
Answer: The house owned at the date of the codicil (2018) passes, because the will is republished as of the codicil date.
Multiple Codicils and Interaction with the Will
A testator can make any number of codicils. Each codicil may amend, add to, or revoke parts of the will or earlier codicils. All valid codicils and the will are read together as a single testamentary disposition.
If a codicil is inconsistent with the will or an earlier codicil, the later document prevails to the extent of inconsistency.
Revision Tip
If there are several codicils, always read the will and all codicils together to determine the testator's final intentions.
Witnessing and Beneficiaries
If a beneficiary or their spouse witnesses a codicil, any gift to that beneficiary in the codicil is void (Wills Act 1837, s.15). However, this does not invalidate the entire codicil or the will.
Worked Example 1.4
A testator makes a codicil increasing a legacy to their son. The codicil is witnessed by the son's spouse. What is the effect?
Answer: The increased legacy to the son in the codicil is void, but the rest of the codicil and will remain valid.
Tax and Practical Implications
Codicils can affect the tax position of the estate. For example, a codicil may change a gift from a taxable beneficiary to an exempt one (such as a spouse or charity), reducing inheritance tax. The date of the codicil may also affect tax reliefs or exemptions.
Worked Example 1.5
A will leaves a business asset to a nephew. A later codicil changes the gift to a charity. What is the inheritance tax effect?
Answer: The gift to the charity is exempt from inheritance tax, reducing the overall tax liability of the estate.
Common Pitfalls and Exam Traps
- Failing to execute a codicil with the required formalities.
- Assuming that handwritten amendments are valid without proper witnessing.
- Overlooking the republication effect of a codicil on the will's date.
- Not considering the impact of a beneficiary or their spouse witnessing a codicil.
Exam Warning - Common Pitfalls
For SQE1, always check the formalities for any amendment or codicil. If the question mentions a change after execution, ask: Was it signed and witnessed like a will? If not, the change is invalid.
Key Point Checklist
This article has covered the following key knowledge points:
- The formal requirements for valid amendments and codicils under the Wills Act 1837.
- Alterations after execution are only valid if executed and witnessed as a will.
- A codicil must be executed with the same formalities as a will.
- A codicil republishes the will as of the codicil's date, affecting property and beneficiaries.
- If a beneficiary or their spouse witnesses a codicil, their gift in the codicil is void.
- Codicils can affect inheritance tax and the interpretation of the will.
Key Terms and Concepts
- alteration
- obliteration
- interlineation
- codicil
- republication
