PastPaperHero | Wills and Intestacy - Alterations and amendments to wills

Learning Outcomes

This article covers alterations and amendments to wills in England and Wales, including:

The statutory and procedural framework governing changes to wills
Distinguishing alterations made before execution from those made after execution
The formalities required by s.9 and s.21 Wills Act 1837, including attestation near the alteration or by memorandum
The effectiveness of handwritten changes, interlineations, and obliterations, and the “apparent” test for legibility
When and how to use a codicil, its execution requirements, and the republication effect
Probate Registry practice on alterations, including affidavits and “plight and condition”
Conditional revocation (dependent relative revocation) where attempted substitutions fail
Practical drafting and attestation guidance to avoid invalid or uncertain amendments

SQE2 Syllabus

For SQE2, you are required to understand the statutory and procedural framework governing alterations and amendments to wills, with a focus on the following syllabus points:

understanding the statutory requirements for valid alterations and amendments to wills, including the interaction of s.9 and s.21 Wills Act 1837
distinguishing alterations made before execution from those made after execution
explaining the formalities for executed alterations (signatures and attestation in proximity or by memorandum) and the consequences of informal changes
describing codicils as the recommended vehicle for amendments, including execution requirements and the republication effect
analyzing obliterations, interlineations, and the test for whether original words are “apparent” on the face of the will
examining the doctrine of conditional revocation (dependent relative revocation) in the context of attempted substitution that fails
assessing Probate Registry practice on alterations, including affidavits, NCPR evidential requirements, and “plight and condition” concerns
advising clients on whether an attempted alteration is effective, and best practice to avoid invalidity or unintended revocation

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.

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?
What is a codicil, and how must it be executed to be valid?
If words in a will were scratched out before the will was signed, what is the effect as to those words?
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.

Key Term: interlineation
Words inserted between existing lines of the will, whether in the margins or within the body of the text.

Key Term: obliteration
The covering or scoring out of wording so that the original words are fully or partly illegible on the face of the original will.

Any alteration, obliteration, or interlineation made after execution must satisfy the same statutory formalities as executing a new will. This is because section 21 Wills Act 1837 provides that post‑execution alterations are ineffective unless either:

the alteration is executed “in like manner” as a will (i.e. signed by the testator with the s.9 Wills Act attestation by two witnesses); or
the words or effect of the will before the alteration “are not apparent” on the face of the original document.

In practical terms, if a testator amends a signed will informally (handwritten changes, strike‑throughs, additions) without complying with s.9, the alteration is generally void and the original wording stands—unless the original words have been obliterated such that they cannot be read by ordinary inspection.

Key Term: execution of a will
The act of signing and attesting a will in compliance with s.9 Wills Act 1837.

S.21 recognises two ways to execute an alteration:

Signatures (of the testator and two witnesses) placed “in the margin or on some other part of the will opposite or near to the alteration” to make clear what is being attested; or
A signed memorandum (at the end or opposite the text) referring clearly to the specific alterations being made. If a memorandum route is used, it must identify all alterations to be effective.

Best practice is to avoid marking the original document and instead use a properly executed codicil (see below). If clients insist on marking a will, ensure signatures and witness attestation are adjacent to each amendment or use an express memorandum that enumerates and validates all changes.

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.

Practical detail: proximity and clarity

Where attestation is intended to validate an alteration under s.21, it must be sufficiently proximate to the change to leave no doubt which words are being substituted or deleted. Initials or signatures at the bottom of the page, without clear linkage to the altered text or a comprehensive memorandum, will not suffice.

Pencil versus ink

Alterations made in pencil on an executed ink will are presumed deliberative (tentative) and not intended to be effective—even if technically executed—unless evidence proves intention to give them effect. Pencil changes should be replaced with a properly executed codicil or re‑executed will in ink.

“Apparent” test for legibility

If the original wording is still “apparent” on the face of the will—by ordinary means such as close inspection, magnification, or holding to the light—probate will proceed on the original wording. Photocopies or chemical analysis are irrelevant; legibility is assessed from the original will.

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 that alterations were made after execution unless internal or external evidence (e.g. witness statements) shows they were present before execution.

Key Term: attestation clause
A clause in the will that recites compliance with s.9 formalities. It supports a presumption of due execution but does not validate unattested post‑execution alterations.

If an undated will contains alterations, the probate registry may require an affidavit from an attesting witness confirming the date of execution and explaining whether specific alterations were present before execution. Where doubt persists, the registry will admit the will as originally executed and disregard unattested changes.

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.

Key Term: conditional revocation
Sometimes called dependent relative revocation. Where a testator revokes or obliterates a provision intending to substitute another, the revocation may be treated as conditional on the substitute taking effect. If the substitute disposition fails and the original words remain apparent (or can otherwise be proved), courts may treat the revocation as ineffective and restore the original disposition. If the original words are truly obliterated and not apparent, the revocation stands.

Conditional revocation is fact‑sensitive and typically arises in the context of revocation by destruction. It is less likely to assist if the original wording is genuinely unreadable on the face of the will because s.21 directs that illegible words be treated as blank for probate.

Worked Example 1.2

A testator changes “£10,000 to my niece Anna” to “£10,000 to my nephew Ben” by crossing out “Anna” and handwriting “Ben” above, then adds initials of herself and two witnesses at the bottom of the page. No memorandum is added and there are other handwritten changes on the page.

Answer:
The change is unlikely to be valid. Initials at the foot of the page do not clearly attest the specific alteration unless a signed memorandum expressly refers to all such changes. Absent proximity or a comprehensive memorandum identifying each alteration, s.21 formalities are not met and the original wording remains effective.

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.

Key Term: republication
The effect by which a codicil “re‑dates” the will. The will speaks from the date of the codicil for construction and some practical purposes, which can affect interpretation, ademption questions, and operative dates.

Republication may solve dating issues, confirm earlier provisions, and avoid disputes about when changes took effect. It does not cure defects in an invalid will; the codicil must be validly executed.

Worked Example 1.3

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.

Republication: practical effects

A codicil can reset the operative date of the will for construction. If a specific gift would otherwise have adeemed (e.g. “my gold watch” sold after the will), a later codicil may republish the will so the gift is evaluated at the codicil date, potentially preserving a replacement item now owned.

Practical Consequences and Probate

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

If the words as altered can be read on the original, the old words remain effective.
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).
If an alteration is properly executed and attested, the amendment is effective.
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).

Additional practical points:

Use a codicil for amendments rather than writing on the original will. Marked documents often generate evidential disputes in probate.
Where several changes are made, ensure any memorandum expressly identifies each altered clause—generic references are insufficient.
Avoid removing staples or paperclips from an original will, which can raise “plight and condition” concerns (suggesting possible tampering or attempted revocation) and prompt an affidavit.

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. Where an obliteration was part of an unsuccessful attempt to substitute new wording, conditional revocation principles may be argued; however, if the original words are no longer apparent, s.21 requires the obliterated text to be treated as blank.

Worked Example 1.4

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.

Worked Example 1.5

A clause reads “£10,000 to Sam.” The testator obliterates “Sam” and writes “to Lee” above without attestation. The original beneficiary name is now unreadable. The new words “to Lee” are legible but not executed.

Answer:
The gift to Sam is revoked and the attempted substitution to Lee is ineffective. The clause is treated as blank and the £10,000 does not pass under that clause. Conditional revocation is unlikely to rescue the original gift because the original words are not apparent on the face of the will.

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.

Key Term: plight and condition
The physical state of the will presented for probate (e.g. tears, cuts, removed staples, heavy scoring, or added pages). The registry may require an affidavit explaining the condition where there is evidence of mutilation, attached or removed items, or other signs of interference.

Under the Non‑Contentious Probate Rules:

Affidavits may be required to prove due execution (particularly if the attestation clause is absent), to establish the date of execution, or to explain alterations (NCPR r.12, r.14).
An affidavit of “plight and condition” is required where the will is damaged, contains obvious obliterations, or shows pin/staple marks consistent with attachments (NCPR r.15).
Where alterations are presumed post‑execution and not properly executed, the registrar will disregard them and admit the will as originally executed.

The registry assesses whether the original words are apparent solely by inspection of the original will. Copies and earlier drafts are irrelevant to the s.21 “apparent” test.

Worked Example 1.6

A will contains three visible alterations: one is initialled by the testator and two witnesses near the change; one is initialled only by the testator; one is not initialled at all. An attesting witness swears that the second alteration (initialled by the testator alone) was present before the will was signed.

Answer:
The first alteration (properly attested near the change) is effective. The second alteration can be admitted as part of the will if the witness evidence shows it was present before execution. The third alteration is disregarded. The will is admitted to probate incorporating only the valid changes.

Drafting and Attestation Guidance

Do not mark the original will. If a change is desired, prepare a codicil executed in compliance with s.9 Wills Act 1837.
If amendments are unavoidable before execution, ensure the will is reprinted or the alterations are clearly incorporated and then execute the will in its final form.
For any post‑execution alteration by attestation, place signatures and witness attestations opposite or near the alteration, or use a signed memorandum that specifically lists the alterations. Initials alone are acceptable if the intent is clear and the s.9 requirements are met.
Avoid pencil amendments; they are presumed deliberative. Use ink and formal documents.
Preserve the physical integrity of the original will; avoid removing staples and attachments to reduce the need for “plight and condition” evidence.

Summary Table: Validity of Amendments to Wills

Type of Change	Requirement	Effect if Not Met
Alteration before execution	Execution of will as altered	Old wording stands
Alteration after execution (informal)	Must be executed and attested	Change void; old words
Obliteration (original words illegible)	-	Treated as blank
Codicil (formal supplementary document)	Execution and attestation as for will	Codicil void if not valid

Key Point Checklist

This article has covered the following key knowledge points:

Post‑execution alterations must be executed and attested like a will or they are ineffective; proximity of signatures to the alteration (or a signed memorandum referring to all changes) is essential.
Alterations made before execution are effective if the will, as altered, is properly executed; the presumption is that alterations are post‑execution unless proved otherwise.
Where original words are no longer apparent due to obliteration, the clause is treated as blank unless a valid executed alteration substitutes new wording.
Use codicils to amend wills; they must be executed under s.9 and republish the will, which can affect construction and operative dates.
Pencil changes are treated as deliberative; do not rely on them.
Probate registry practice requires affidavits for unclear alterations and for “plight and condition” issues; photocopies cannot revive obliterated wording.
Conditional revocation may restore an original clause only in narrow circumstances and typically where the original words remain apparent; if not, revocation stands.
Advising clients: do not encourage handwritten changes; prefer codicils or re‑execution to avoid invalidity and dispute.

Key Terms and Concepts

alteration
interlineation
obliteration
execution of a will
presumption of timing
attestation clause
codicil
republication
conditional revocation
plight and condition

Worked Example 1.7