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Alteration to Wills and Use of Codicils

Document Cited authorities 3 Cited in Related
Vincent
AuthorLesley King/Peter Gausden
Pages63-65
6 Alteration to Wills and
Use of Codicils

Section 21 of the WA 1837 provides that alterations made to a will after execution are invalid unless the alterations are executed like a will. The initials of the testator and witnesses in the margin beside the alteration are sufficient for this purpose.

6.1 Alterations made before execution

An alteration made before execution is valid but alterations are presumed to be made after execution. This means unless it can be proved that they were made before the will was executed, they will be ineffective. The safe course is, therefore, for the testator and witnesses to initial and date all alterations, whenever made.

6.2 Alterations made after execution

Unless executed like a will, the alteration is invalid and the original wording is admitted to probate so long as it is ‘apparent’. Wording is regarded as apparent if it can be read by ordinary means, such as close inspection through a magnifying glass or holding the document up to the light.

What if the original wording is not apparent? If the original words have been obliterated in such a way they can no longer be read, those words have effectively been revoked by destruction. The rest of the will remains valid and takes effect with the omission of the obliterated words.

The court may decide that the testator’s intention to revoke the obliterated words was conditional only. This inference is most likely where the testator attempted to replace the obliterated words with a substitution. The implied condition is that the testator intended to revoke the original words only if the substitution was effective. As it is not effective, the original words remain valid and, if they can be reconstructed (e.g. from a copy or draft), they will take effect.

64 Wills: A Practical Guide

EXAMPLES

In each of the following cases the original legacy was £1,000. The witnesses are dead and so there is no extrinsic evidence as to when the alterations were made:

£10,000

£10,000 A.T.
W. 1
W. 2

£10,000

In the absence of evidence of when the alterations were made, they are all treated as made after execution.

In clause (a), the alteration is unexecuted and is, therefore, inadmissible to probate. The original wording is apparent and so Fred takes the original amount of £1,000.

In clause (b), the alteration is initialled by the testator and witnesses and so ‘executed like a will’. It is admissible to probate and Freda takes £10,000.

In clause (c), the obliteration is treated as...

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