topic 2 of law of probate (alteration of wills ) PDF

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TOPIC 2: ALTERATION OF WILLS WHAT IS ALTERATION OF WILLS? Change, adjustment, adaptation, modification, variation, revision, amendment To change the content of the will Effect will be the same as revocation where the altered part will fail to take effect TYPES OF ALTERATION? Section 15 of Wills Act 1959 No obliteration, interlineation or other alteration made in any will after the execution thereof shall be valid or have any effect….. 1. Obliteration: expunge, delete, cancel, erase 2. Interlineation : the process of writing between the lines of an instrument, that which is written between the lines of document 3. Other alteration 

WHEN ALTERATION CAN BE MADE? Section 15    

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No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect except in so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will, but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witness be made in the margin or other part of the will opposite or near to such alteration or at the foot or end or opposite to a memorandum referring to such alteration and written at the end or some part of the will.

1) Alteration before the execution of a will First part of section 15  

No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect except in so far as the words or effect of the will before such alteration shall not be apparent

If a testator wishes to alter his will, he can do so before he executed the will. An alteration is valid if the testator intends the alteration to form part of the will and the alteration is made before the will is executed. Once the will is executed, the testator cannot make any alteration to it and if he does, the alteration would not be valid. However, if the testator did alter his will after it is executed, the alteration would be valid if the words or effect of the will before such alteration shall not be apparent. 1

As long as the words before alteration could be read by any natural means, they are considered apparent and any alteration made would not be effective. Q: how to determine words are apparent or not? It is not permissible to use extrinsic evidence or by physically interfering with the will such as, using chemicals to remove any ink mark or removing a slip or a strip of paper pasted over the words. Apparent: the original words still could be read Ffinch v Combe (1894) P 191  

The court allowed the will to be read by surrounding obliteration with brown paper and holding the document against a window pane. In this case, the alteration is not valid as the original words could still be read by natural means

Re Horsford (1874) LR 3 P & D 211    

The testator had pasted a strip of paper over part of the will and he then had written over that strip the altered words. The strip could not be removed. The court in this case held that the effect of the instrument of the will before alteration would not be apparent unless it was possible to read through that strip. Thus, if the strip is forcedly removed and subsequently it becomes possible to read the original words, the alteration is valid as this is considered as physically interfered with the will, which is not permissible.

Issue: if an infrared photograph of the document is taken and by looking at the photograph, it is then possible to read the contents of the will and is this permissible? Re Itter (1950) 1 AER 68   

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The testatrix pasted a slip of paper over parts of her will with alteration on them. And infra-red photograph of the document was taken and by examining this photograph it was possible to see what had been written in the first place. The court held that the alteration was valid as the words before alteration were not apparent by looking at the will itself through natural means and not from the infra-red photograph. The effect of the will before alteration was not apparent as what was apparent from the examination of the photograph of the will and not of the will itself.

2) Alteration is made after the will is executed Section 15  

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unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will, but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witness be made in the margin or other part of the will opposite or near to such alteration or at the foot or end or opposite to a memorandum referring to such alteration and written at the end or some part of the will.

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Alteration would be valid even though the original words before alteration are still apparent, if the testator signs near the alteration or neat the memorandum referring to the alteration according to the prescribed formalities of the Act. Re Choo Kim Kiew (1949) MLJ 144    

The testator made certain alteration to his will. Beside the alteration, the testator put his initial and date but he did not sign and no witness attested the alteration. The question before the court is whether the will effective as originally stated or as the altered version. It was held that the alteration was not valid because there were no signature of the testator and the witnesses.

There should be a signature of the testator and the witnesses to make the alteration as valid. Re White     

The testator dictated certain alterations which were copied onto his will. He checked the alterations and wrote at the end of will ‘Alterations to will dated 12.12.84’ and asked 2 witnesses to sign. Testator not sign. Alteration made after the execution of a will would not be valid if the words before such alteration are still apparent. It was held that the alterations not duly executed and invalid.

Alteration of a will would not be valid if the words before such alteration are still apparent. However it could be valid if the alteration was signed by the testator and attested by two or more witnesses. As required by the Act, the signature must be put in the margin or on some other part of the will opposite to a memorandum referring to such alteration and written at the end or some other part of the will.

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