Conditional Obliteration

Note that conditional obliteration

works in a similar way to conditial
revocation - if T's intention is to
revoke conditionally - revocation not
effect despite obliteration if condition
not fulfilled
If condition not fulfilled,
obliterated part has to be
ascertained to form probate court can employ variety of methods
to discover obliterated part
So where T changes 10K to 3K
without the relevant attestaton
and intention is to substitute 10K with 3K
then conditional obliteration and if the
substitution fails for lack of formality
then 3K 10K reverts.. if however T's
intention was to revoke absolutely
then probate will put blank space for
10 K
In the Goods of
Itter [1950]

Part of Will not "apparent"

If alteration makes any
part of the will not apparent
then that part deemed revoked
in T intended to revoke it
Where T accidentally spills
ink on will, obliterating part
of it, not operate to revoke
affected part
Test of whether words
"apparent" is whether
optically discernible on the face
of the will; Whether they can
be seen with naked eye (without
extrinisic aids)

Alterations, Obliterations etc

These are Amendments, changes to original
Tprovisions of the will executed by T
Obliteration - words blotted out,
crossed through or covered, so
that words no longer discernible.
Total or Partial; Other words
or figures may be written over
or substituted for obliterated
words
Interlineation - words/fugures
entered between lines of Will
- extends to words/figures inserted
on lines or imported into text via
asterisk and other interpolation
"Any other alteration"
- where text before alteration
is still discernible

Townley v Watson
(1844)

Probate will be granted of will

but parts not apparent will
be read as blank spaces

Courts have held that

words not apparent where Will framed by brown paper
held up to to light tp discern
words beneath paper pasted
over text
Ffinch v Combe [1894]

USe of magnifying glass

In the Goods of Brasier
[1899]

Removing a slip of
paper pasted over
words
In the Goods of Horsford
(1874)

Applying chemical to will

to remove ink stains

Introduction

Extrinsic Evidence

Wills Act has a convoluted section

concerning amendments and
alterations AFTER EXECUTION
Section 16 Wills Act
No obliteration, interlineation, or other
alteration made in any will after the
execution shall be valid or have any
effect
UNLESS alteration executed in
like manner as required
for execution of the will
Note - Section 16 concerns
alterations AFTER EXECUTION

Procedure when certain

unattested alterations
appear in Will/Codicil

Alteration BEFORE
Execution is not governed
by Statute

Registrar will require

affidavit from executor or
attesting witness or other
person present at execution
to provde that amendments
made prior to execution before
admitting such amendments to
probate
Waived traditionally if alterations trivial and of
no practical importance
-alterations verified by
initials of attesting
witnesses
-alterations confirmed by
re-execution of will
or execution of codicil

Rebuttable Presumptions
Presumption that
Alterations in pencil show
mere deliberation and not
final intention
Hawkes v Hawkes
(1828)

Presumption that
Alterations in Ink show
settled final intention

Alteration before execution

Once alteration made before
Will with T INTENDING to
incorporate it in will at time of
execution then alteration
valid

Alteration
(Amendment)
of Wills

No need for such alterations

to be specifically executed

If INTENTION was not for

alteration to be final - then
not valid

Rule 68.15 CPR

Alteration after Execution

Confirmation of Will
(Republication)
Validated by Signatures

Validated by Signatures
if alteration made after execution,
can only be validated by signature
of T/W attesting to the alteration
as if executing will
"..if the signature of the
testator and the subscription
of the witness be made in
the margin, or on some
other part of the will opposite
or near to such alteration,
or at the foot or end of or
opposite to a memorandum
referring to such alteration,
and written at the end
or some other part of the will.."
Initials can be given
instead of usual
signature In the Goods of Blewitt
(1880)
[where T altered, and made
initials in margin and 2 w
wrote initials in margin as well
- held duly incorporated

Where W initial changes

but not that of testator
- amendments not included
in probate
Re White
[1991] Ch1

Usually prudent to effect

substantial alterations via
execution of codicil or new
will - reserve signatures/initials
to minor changes of will
(may not be a feasible option
if time is of essence)

May be statements
from T himself which indicates
alterations occured before
execution
Statements must been
made before or at time of
execution,
not subsequently
Other person may give
affidavit evidence drafter of will, attesting
witness or other person
present at time

Confirmation of Will
(Republication)
T executes will and later
makes alteration (which
is not attested by relevant
signatures) and then later
subsequently confirms
(republishes) will - re-execution
will validate previous alterations
made once T intended alterations
to be incorporated in will upon
confirmation
In the Goods of Shearn
(1880)

If T confirms alteration by
duly executed codicil which
makes reference to the Will
In the Goods of Sykes
(1873)

NATURE of alteration is
always valid nonethelss confirmation alone wont
immediately rebut presumptions
Codicil which rebuts
presumption has to rebut
not only that alteration made
before execution of will but
before execution of codicil
in question
In the Goods of Heath
[1892]

Hawkes v Hawkes
(1828)

Presumption that alteration

not attested by signature
of T/W were made
after execution of the WILL
and ALL OTHER CODICILS
(not just will alone)
Best to ensure that
changes are separately
attested by both T and
Witnesses in margin next to
alteration
In the Goods of Adamson
(1875)

Rebutting Presumptions
Presumptions may be
rebutted by either intrinsic
evidence /extrinsic evidence
Where alterations are minor with
little impact on will - easy to rebut
In the Goods of
Hindmarsh(1866)

Intrinsic Evidence
Dates can rebut

Birch v Birch
(1848)
[where dates rebutted
presumption]
[Where T gave instructions to
son to prepare will leaving blank
spaces for several legacies to
be gifted, which T would himself
fill in before execution; T later
executed will, after death, will
found in envelope with seals
broken -legacies filled in in
T's handwriting but with multiple
obliterations, interlineations
and other amendments, some
in black ink, some in red ink.
Not attestation of alterations.
Envelope also had two detail
list, black and red ink, one
same date as will, other after;
Court considered presumption,
and differentiated gifts,
admitting those in black
dated same date as will,
and refused those in red]

Same ink as rest of

document and served
to complete the sense of the
text - can rebut
In the Goods
of Cadge (1868)