Will Amendment: alterations

Question 1

What are the ways in which a testator might amend their will?

Answer 1

• make an entirely new will
• make a codicil to an existing will
• make manuscript amendments to their original will

Question 2

What are the issues with amending will by manuscript amendments?

Answer 2

• law governing manuscript amendments is complex and there is a risk overall result might not be what testator would have planned
• alterations made by another person are invalid (unless intended by testator and made in their presence and their direction)
• where testator wants to alter will, they should be usually advised to make new will rather than making a codicil or hand amendment

Question 3

What are the types of amendments?

s.21 Wills Act

Answer 3

• Obliteration: where text has been crossed out in such a way original text is illegible (not clear enough to read)
• Interlineation: where writing has been inserted between existing lines of documents - often to add something
• Other alteration: include additions to end of will, a strike through text which is still legible

Question 4

Amendments made post-execution?

Answer 4

General rule: amendments made after will is executed are invalid and unenforceable = alteration has no effect and original wording is given effect to.
* only alterations made after execution are invalid BUT those made before execution with testator’s knowledge & approval are valid and enforceable
* however, difficulties arise where it’s hard to know when alteration occured as such there is a rebuttable presumption that an alteration was made after execution
- PRs will need to produce affidavit evidence of state and condition of will at time of execution thus requirign witnesses to accurately recalling what will looked like at execution

Question 5

What is needed to make alterations post-execution to be valid?

Answer 5

It will need to be executed like a will (signed by testator and two witnesses), alongside alteration
* witnesses need not be the same people who witnessed will - initials of testator and witnesses are sufficient
* good practice to even execute amendments made before will like this so to avoid unnecessary disputes.

Question 6

If manuscript amendment itself is not specifically attested, what may testator do to confirm it?

Answer 6

• re-execute amended will as a whole
• or executing a subsequent codicil that affirms will it amended
  = in both cases, express reference to manuscript amendements is requried to ensure presumption that alterations were made after execution is rebutted

Question 7

What are the exceptions to the general rule of unattested amendments?

Answer 7

• where a blank space has been completed, there is a presumption that this occured before execution
• if obliteration is such that original wording is not apparent (e.g., covered over or cut out), this will be treated as having been made by testator with an intention to revoke and so alteration will be effective

apparent means original words can be deciphered by natural means (e.g., reading it or holding it to light) and without need for extrinsic evidence (e.g., draft document)

Question 8

What is said about conditional revocation?

Answer 8

If testator made obliteration with conditional intent to revoke gift then extrinsic evidence is permitted to show original wording - fresh copy of will containing original wording woule be admitted to probate
* e.g., testator covered gift amount and substituted with another figure but original wording is unknown
- courts can find testator only intended to revoke original gift if substitution is successful
- but if addition figure is not a valid alteration (was made after execution or cannot be proved it was made before), then substitution is unsuccessful as such no valid revocation of original gift
- original gift, if it can be ascertained should be given effect to and extrinsic evidence is permitetd to establish original wording

Question 9

When are manuscript changes appropriate?

Answer 9

• amendments have no impact on interpretation or meaning of will (e.g., correction of a typo or change of beneficiary’s address)
• changes must be made urgently and a codicil and new will cannot be prepared (e.g., testator’s due to travel or urgent hospital treatment)

= in these situations, testator and witnesses signature is needed so to avoid requirement to rebut presumption on timing