Alterations and amendments to wills - Use and effect of codi...

Learning Outcomes

This article explains the legal requirements for valid alterations and amendments to wills and the use and effect of codicils, including:

• Legal requirements for valid alterations and amendments to wills
• Formalities for codicils under the Wills Act 1837
• Republication by codicil and its legal impact
• Alterations before and after execution
• Effectiveness of handwritten changes and obliterations under section 21 Wills Act 1837
• Section 15 witnessing rule for beneficiaries, spouses, and civil partners
• Revival, confirmation, and partial revocation of a will by codicil
• Inheritance tax outcomes linked to codicil changes
• Application to SQE1-style scenarios
• Common exam pitfalls

SQE1 Syllabus

For SQE1, you are required to understand the rules governing alterations and amendments to wills, and the use and effect of codicils, with a focus on the following syllabus points:

• 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
• section 21 Wills Act 1837 for alterations made after execution (execution of the alteration or obliteration effect)
• section 15 Wills Act 1837 and the effect of a witness who is a beneficiary or the beneficiary’s spouse/civil partner
• section 24 Wills Act 1837 (will speaks from death as to property and from execution date as to people) and how republication by codicil updates the execution date
• revival of a revoked will by re‑execution or codicil clearly showing intention (Wills Act 1837, revival)
• Non‑Contentious Probate Rules on proving alterations (including affidavits of due execution, knowledge and approval, and “plight and condition”)

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 a codicil satisfy to be valid?
2. What is the legal effect of a codicil on the date of a will?
3. If a testator wants to change a specific legacy in their will, what are the two main lawful methods?
4. 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.

A codicil is often chosen where the changes are limited (for example, replacing an executor, amending one or two legacies, or adding charitable gifts). If the changes are extensive or the original will is poorly drafted, a fresh will is usually safer to avoid inconsistencies and reduce the need to collate multiple instruments on probate. Remember: codicils are read with the will as a single testamentary scheme, so internal consistency matters.

Key Term: alteration
A change made to the text of a will, such as crossing out, adding, or substituting words.

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.

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. In practice, if a will presented for probate contains alterations which are not executed and witnessed themselves, the probate registry may require evidence (often from an attesting witness) that the changes pre‑dated execution. An attestation clause helps trigger the presumption of due execution for the will, but specific proof may be required for alterations.

Where alterations were made pre‑execution and the will was then duly executed, the altered text forms part of the will without separate signatures next to the changes.

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. Section 21 Wills Act 1837 governs this point. If the alteration is not properly executed, 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.

Section 21 permits two practical routes to valid post‑execution changes:

• the testator and both witnesses sign (initials are acceptable) opposite or near the alteration; or
• a memorandum is added (usually at the end of the will) that clearly refers to all alterations and is signed by the testator and both witnesses at or opposite the memorandum.

If an obliteration makes the original words unreadable, the law treats those words as revoked even if the obliteration is not itself properly witnessed; however, no new words are thereby inserted—there is simply a “blank” where the gift was.

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.

In probate practice, if the will shows physical interference (writing over, cutting away parts, staple or pin marks, tape marks, or torn pages), the registry may require an affidavit of “plight and condition” explaining when and how the document was altered, and may also request evidence to show whether alterations were pre‑ or post‑execution.

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.

Worked Example 1.2

A testator heavily scribbles over the beneficiary’s name in a pecuniary legacy so the name cannot be read. No one witnessed this obliteration. Is the gift still effective?

Answer:
No. Under section 21, if the original words are no longer apparent by ordinary reading, that part is treated as revoked. The legacy fails and, absent a substitution clause, the sum falls into residue.

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.

Codicils can be employed to:

• confirm the will without change, preserving its terms but updating the effective execution date;
• vary, add, or revoke particular gifts or administrative provisions;
• appoint or replace executors or trustees;
• change tax directions (for example, “free of tax” or “subject to tax” wording);
• revive a previously revoked will, if the codicil clearly intends revival.

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. Where suspicious circumstances exist (for example, a major beneficiary prepared the codicil or the testator had severe language or literacy limitations), knowledge and approval may need to be proved before a grant will issue.

Worked Example 1.3

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" is assessed by reference to the execution date; republication moves that date forward to the codicil).
• The application of statutory rules (e.g., marriage revokes a will unless it was made in contemplation of that marriage—if a codicil is executed after the marriage, its republication effect can validate the scheme going forward).
• Other interpretative rules: a will speaks from death as to property, but from execution as to people (section 24 Wills Act 1837). Republication resets the execution date to the codicil date.

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 1.4

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.

Worked Example 1.5

A will signed in 2015 gives “to my children living at the date of my will.” In 2022, the testator executes a codicil confirming the will. One child was born in 2019. Does that child take?

Answer:
Yes. As to people, the will is treated as executed on the codicil date. The child born in 2019 is within the class measured at 2022.

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. A codicil can also revive a previously revoked will if its wording makes that intention clear; otherwise, mere “confirmation” of a revoked will may not be enough—ensure the codicil expressly revives or re‑executes the will if revival is intended.

Practical drafting tip: when codicils accrue, the administrative burden and the risk of confusion increase. For significant changes, replacing the whole will may be preferable.

Revision Tip

If there are several codicils, always read the will and all codicils together to determine the testator's final intentions.

Worked Example 1.6

A 2014 will leaves residue to M. A 2018 codicil leaves residue to N and says “save as varied herein I confirm my will.” A 2021 codicil adds a charitable legacy but does not mention residue. Who takes residue?

Answer:
N. The 2018 codicil varied residue to N. The 2021 codicil did not alter residue, so N’s gift remains effective.

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. The rule applies to spouses and civil partners; it does not apply to fiancées or cohabitants.

A witness can still act as an executor; witnessing affects gifts, not appointments. The safe practice is to avoid using a beneficiary, their spouse, or civil partner as a witness to any will or codicil, thus preventing accidental forfeiture of a gift.

Worked Example 1.7

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.

Worked Example 1.8

The original will leaves £20,000 to a daughter. A codicil adds a further £10,000 for the daughter. The codicil is witnessed by the daughter’s civil partner. What does the daughter receive?

Answer:
The additional £10,000 in the codicil is void under section 15; the original £20,000 in the will stands.

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, as business or agricultural property reliefs depend on qualifying conditions met at death. In addition, a codicil may introduce or amend “free of tax” directions or clarify whether mortgage debts on a specific property fall on residue or the specific devisee.

Charitable structuring: a codicil can be used to increase charitable provisions so that at least 10% of the net estate passes to charity, potentially qualifying the residue for the reduced 36% inheritance tax rate (where the statutory conditions are met).

Administrative practice: where the face of the will bears alterations, the probate registry may require affidavits to verify due execution, knowledge and approval, or to explain physical condition issues (“plight and condition”). If a will bears evidence of alterations post‑execution that are not validly executed under section 21, the original words will generally be admitted to probate unless obliteration has rendered them unreadable.

Worked Example 1.9

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.

Worked Example 1.10

An estate would otherwise suffer a 40% inheritance tax rate. A codicil is executed adding charitable legacies that meet the 10% test for the reduced rate. What is the rate applied to the taxable estate?

Answer:
36% on the taxable portion, provided the statutory conditions for the reduced rate are satisfied.

Common Pitfalls and Exam Traps

• Assuming that handwritten amendments are valid without proper witnessing; most are not unless they comply with section 21.
• Failing to sign and have witnessed the alteration near the change or via a memorandum that covers all alterations; missed changes will be ineffective.
• Relying on an obliteration to insert new words; obliteration revokes unreadable text but does not insert a replacement gift.
• Overlooking the republication effect of a codicil: it updates the execution date for class gifts and other rules dependent on execution timing.
• Ignoring section 15 where a beneficiary or their spouse/civil partner witnesses a codicil; the gift in that codicil is void.
• Creating multiple codicils that conflict or fail to expressly address revival where an earlier will had been revoked; clarity on revival avoids litigation.
• Using beneficiaries or close family as witnesses, risking unintended forfeiture of gifts.
• Not considering tax impacts (charitable exemptions, spouse exemption, business/agricultural relief) when modifying gifts via 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:

• Alterations made after execution are only valid if executed and witnessed in accordance with section 9 Wills Act 1837, as required by section 21.
• Obliterations that render words unreadable operate as revocations of those words; they do not insert new gifts.
• A codicil must be executed with the same formalities as a will (writing, signature, and two witnesses present together).
• A codicil republishes the will as of the codicil's date, affecting both property captured and the date used for class gifts and other rules tied to execution.
• Later codicils prevail over inconsistent earlier terms to the extent of inconsistency; codicils can revive a revoked will if the codicil expressly intends revival.
• If a beneficiary or their spouse/civil partner witnesses a codicil, their gift in that codicil is void; the rest of the instrument remains valid.
• Codicils can affect inheritance tax (e.g., charitable exemption, reduced rate where 10% charitable threshold is met) and the incidence of debts and tax directions.

Key Terms and Concepts

• alteration
• obliteration
• interlineation
• codicil
• republication