Wills and Intestacy - Alterations and amendments to wills

Learning Outcomes

After reading this article, you will be able to identify and explain the requirements for valid alterations and amendments to wills under the law of England and Wales. You will understand when changes to a will are valid or invalid, the formalities for amendments, the operation of codicils, and how the courts treat obliterations and interlineations. You will be able to apply these concepts accurately to exam scenarios on will amendments in the SQE2 context.

SQE2 Syllabus

For SQE2, you are required to understand the requirements and consequences of alterations or amendments to wills for the purposes of validity and probate. Key points for revision include:

• The statutory requirements for valid alterations and amendments to wills, both before and after execution.
• The distinction between alterations made pre- and post-execution, and the legal consequences of each.
• The process and requirements for valid codicils (supplementary documents).
• The rules on obliterations and interlineations, including circumstances when they are effective or void.
• How the probate registry approaches amendments.
• Advising a client as to the validity and effect of an attempted alteration, amendment, or codicil under realistic legal 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.

1. A testator strikes through a beneficiary's name in their signed will and writes a new name above it in pen—no witnesses. Is this change valid?
2. What is a codicil, and how must it be executed to be valid?
3. If words in a will were scratched out before the will was signed, what is the effect as to those words?
4. What legal effect does an obliteration have if the original words cannot be read on the face of the will, and no valid amendment has been executed?

Introduction

Alterations and amendments to wills are common in practice, but the law applies strict requirements to ensure such changes are valid and enforceable. Any change to a will must comply with the formalities set out by statute—failure to follow them can cause amendments to be ineffective or even render part or all of the will invalid. It is essential for practitioners and candidates to identify when an alteration is valid, when a codicil is necessary, and how amendments interact with the probate process. This article focuses on the statutory requirements, the effects of non-compliance, and practical application to exam problems.

Statutory Formalities for Alterations

Amendments to a will after signing are governed by clear rules:

Key Term: alteration
A change, addition, or deletion made to a will after its original preparation.

Any alteration, obliteration, or interlineation (addition) made after execution must satisfy the same statutory formalities as executing a new will. This means the amendment must be signed by the testator and attested by two witnesses, in accordance with section 9 of the Wills Act 1837, or it will not have effect.

Key Term: execution of a will
The act of signing and attesting a will in compliance with formal legal requirements.

Worked Example 1.1

A testator signs a will leaving "£10,000 to John." Later, she strikes through "John" in ink and writes "Mary" above it, but no witnesses sign or initial the change. She dies leaving the will in this form. Is "Mary" entitled to the gift?

Answer:
No. The alteration was not executed and attested in accordance with the Wills Act. The amendment to "Mary" is ineffective. Depending on legibility, "John" may still take the gift unless the obliteration makes the name unreadable, in which case the gift fails for uncertainty.

Alterations Made Before Execution

Alterations or amendments made before the will is executed are valid, provided the will, as altered, is duly signed and witnessed. The altered text forms part of the will upon proper execution, and there is no need for further formality. The presumption, however, is that any alteration was made after execution unless evidence proves otherwise.

Key Term: presumption of timing
The legal assumption as to when an alteration was made, rebutted only by evidential proof.

Key Term: attestation clause
A statement in the will reciting compliance with formalities for execution and witness.

Alterations Made After Execution

If an alteration is made after the will has been validly executed, it is only effective if the amendment is executed like a will—signed by the testator and attested by two witnesses. Informal changes, crossing-out, and insertions not properly executed are generally void.

Where post-execution obliterations or alterations render the original wording illegible on the face of the original will (not including photocopies), and no valid amendment is made, the clause or words are read as blank and fail: the will is admitted to probate omitting those words.

Codicils

A codicil is a formal, supplementary document made to alter, revoke, or add provisions to an existing will.

Key Term: codicil
A testamentary document executed with full statutory formalities, intended to amend, add to, or partially revoke an earlier will.

A codicil must itself be executed and witnessed as a will. Upon execution, a codicil can validly change, add to, or revoke parts of the original will. The will and codicil are read together on probate.

Worked Example 1.2

A testator wishes to increase a legacy from £1,000 to £5,000 after executing their will. You advise: should they cross out "£1,000" and write "£5,000" in the will, or use a codicil?

Answer:
They must make the change by codicil—executed and witnessed as a will. Informally marking the original will, without proper attestation, is legally ineffective and risks both versions of the legacy failing.

Practical Consequences and Probate

Altering a will without proper execution leads to four possible results:

1. If the words as altered can be read on the original, the old words remain effective.
2. If the original words cannot be read, and there is no valid amendment, the clause fails and is read as blank (but only on the original—prior copies are irrelevant).
3. If an alteration is properly executed and attested, the amendment is effective.
4. An unattested alteration made before execution is presumed to have been made after execution, unless the contrary is proved (placing the burden of proof on the party asserting an earlier date).

Obliterations

Obliterating (scoring out or otherwise making a clause unreadable) in an executed will, without proper attestation, may amount to partial revocation only if the obliterated words cannot be read on the face of the original by ordinary means (e.g., direct inspection, magnifying glass, or holding to the light—not by chemical analysis or reference to copies).

If the original words are legible, they are admitted to probate and take effect despite the attempted alteration.

Probate Registry Practice

When alterations are apparent on the face of a will submitted for probate, the registry requires evidence of compliance with formalities. If there is clear evidence an alteration was made before execution, or is properly attested, it is effective. Otherwise, the presumption is against validity, and the will is admitted as originally executed.

Worked Example 1.3

A will states "I leave my laptop to Alice." The words "laptop to Alice" have a solid line scored through and are wholly unreadable. There is no signature or attestation near the crossing-out. What is the legal effect?

Answer:
The bequest to Alice fails. The obliteration is not properly executed but is effective as a revocation because the original words cannot be read from the original. This clause is blank for probate; the gift is not made.

Summary Table: Validity of Amendments to Wills

Key Point Checklist

This article has covered the following key knowledge points:

• Valid alterations to a will must comply with all statutory execution and attestation requirements.
• Amendments before execution are effective if the will as altered is fully executed.
• Presumption: alterations are post-execution unless proved otherwise.
• Amendments after execution require formal execution; informal amendments are void.
• Codicils must be executed and witnessed as wills to be valid amendments.
• Obliterations making original words unreadable, if not validly executed, are treated as blank for probate.
• Probate practice presumes alterations are invalid unless there is evidence to rebut.
• Improper amendments can cause unintended revocation or intestacy of clauses.

Key Terms and Concepts

• alteration
• execution of a will
• presumption of timing
• attestation clause
• codicil