Learning Outcomes
After reading this article, you will be able to explain how English law treats alterations and amendments made to a will before it is executed. You will understand the statutory requirements for valid pre-execution changes, the legal presumption about the timing of alterations, and the practical steps to ensure that a testator’s intentions are properly reflected and legally effective. You will also be able to apply these principles to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the rules and practical implications of alterations and amendments to wills, especially those made before execution. In your revision, focus on:
- the statutory formalities for valid alterations to a will before execution
- the legal presumption regarding the timing of alterations and how it can be rebutted
- the consequences of failing to comply with formalities for pre-execution changes
- best practice for ensuring amendments are valid and enforceable
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.
- What is the legal presumption about the timing of an alteration found on a will?
- What formalities must be satisfied for a pre-execution amendment to a will to be valid?
- If an alteration is made before execution but is not attested, what is its legal status?
- How can the presumption about the timing of an alteration be rebutted?
Introduction
Alterations and amendments to wills are common in practice. However, English law imposes strict requirements for any change to a will, including those made before the will is executed. Understanding these requirements is essential for SQE1, as failure to comply can result in the intended change being ineffective and the testator’s wishes not being carried out.
Statutory Requirements for Pre-Execution Alterations
Any change made to a will before execution must comply with the same formalities as the will itself. This is set out in section 9 of the Wills Act 1837. The will, including any amendments, must be in writing, signed by the testator (or by someone else in their presence and at their direction), and attested by two or more witnesses present at the same time.
Key Term: pre-execution alteration A change made to the text of a will before it is formally executed by the testator and witnesses.
Key Term: attestation The act of witnessing the testator’s signature and signing the will as a witness, confirming that the formalities have been complied with.
The Presumption About Timing of Alterations
If an alteration appears on the face of a will, the law presumes that it was made after the will was executed, unless there is evidence to the contrary. This presumption is important because changes made after execution must meet additional requirements to be valid.
Key Term: presumption of post-execution alteration The legal assumption that an alteration was made after the will was signed, unless proven otherwise.
Validity of Pre-Execution Amendments
If an amendment is made before execution and is attested by the testator and both witnesses, it forms part of the will and is valid. If the amendment is not attested, it is presumed to have been made after execution and is generally invalid unless the presumption is rebutted.
Key Term: attested alteration An amendment to a will that is signed or initialled by the testator and both witnesses, confirming its validity.
Rebutting the Presumption
The presumption that an alteration was made after execution can be rebutted by clear evidence that the change was made before the will was signed. This evidence may include statements from the witnesses, the solicitor, or internal evidence from the document itself (such as consistent ink or handwriting).
Worked Example 1.1
A testator writes a will and, before signing, changes the amount of a legacy from £5,000 to £10,000. The change is not initialled by the testator or witnesses, but the solicitor present confirms that the change was made before execution and that the will was read over with the change before signing. Is the alteration valid?
Answer: If the evidence from the solicitor is accepted, the presumption that the change was made after execution is rebutted. The change will be treated as valid and part of the will.
Practical Consequences and Best Practice
Legal practitioners must ensure that any pre-execution amendments are properly attested. The safest approach is to have the testator and both witnesses initial or sign next to each change at the time of execution. If there are multiple changes, each should be clearly marked and attested.
If there is any doubt about the timing or validity of an alteration, it is best to redraft the will to incorporate the changes and execute a clean version.
Worked Example 1.2
A client brings a will to your office with several handwritten changes. The will is unsigned. The client asks you to witness their signature. What should you do?
Answer: You should ensure that all changes are incorporated into the will before execution and that the testator and both witnesses sign or initial each change at the time of execution. If there are many changes, it is best to prepare a new will reflecting all amendments.
Exam Warning
If an alteration is not properly attested, and there is no clear evidence that it was made before execution, the change will be presumed invalid. The original wording will stand, which may defeat the testator’s intentions.
Revision Tip
Always advise clients to avoid making handwritten changes to a will before execution unless they can be properly attested at the time of signing.
Key Point Checklist
This article has covered the following key knowledge points:
- Any alteration to a will before execution must comply with the same formalities as the will itself.
- The law presumes that an alteration was made after execution unless there is evidence to the contrary.
- An unattested alteration is presumed invalid unless the presumption is rebutted by clear evidence.
- Best practice is to redraft the will to include any changes or to have all changes attested by the testator and both witnesses at execution.
Key Terms and Concepts
- pre-execution alteration
- attestation
- presumption of post-execution alteration
- attested alteration
