Is this will still valid?

John_Gray

Not sure where this question should go, but one of the lengthy threads in this forum is about "Preparing for Death".

• An elderly person made a valid, properly-signed will, and kept it in his house.
• After a period of time, he changed his mind about beneficiaries, and scribbled alterations on the will in pencil, but did nothing further about having a replacement will drawn up.
• After a further period of time he died, and the will was found among his possessions.

Is this will as originally composed still valid?

Obviously a solicitor would need to pronounce on this, but I wonder if someone knowledgeable could give an initial opinion...

Nicki

My recollection is that if you deface a will then it becomes null and void, and the person will be deemed to have died intestate. Are you positive it was the original will he scribbled over though? Could it have been a copy, with the original being held safely somewhere else?

MrsTinks

I think you definitely need to contact a solicitor about this... seems a very grey area...

John_Gray

Nicki wrote: »

My recollection is that if you deface a will then it becomes null and void, and the person will be deemed to have died intestate. Are you positive it was the original will he scribbled over though?

This is somewhat second-hand, so I am not absolutely certain that this is the original will. I think it is...

If the "defacement of a will renders it null and void" then one could postulate that a wicked person with access could open the envelope in which it is kept, scribble all over it, then replace it in the envelope. The will-maker would believe that his will still stood, since he would have no reason to know that it had been invalidated.

Is this the intention of probate law?

patchwork_cat

You will get the opinion of barrack room lawyers I am afraid, but really the only way is to seek the legal advice of someone whose qualifications you know.

John_Gray

patchwork_cat wrote: »

You will get the opinion of barrack room lawyers I am afraid, but really the only way is to seek the legal advice of someone whose qualifications you know.

You may be being a little harsh, because Nicki is using all the right words (and better ones than mine!).

Internet searches aren't easy because "will" is also a verb, but I did find
"Safe storage of your Will and associated documents is of paramount
importance. If any of these documents are lost, damaged or defaced in any
way, they may be declared invalid and the Law of Intestacy will be applied
to your Estate. "

Hey ho, hey ho, it's off to the solicitor I go... © Disney

Errata

This might help a bit http://www.communitylegaladvice.org.uk/en/legalhelp/leaflet10_3.jsp

The difficulty is that without the changes being properly witnessed there is no proof that the willwriter made them or if they were made by someone else.
HTH

localhero

Hi John Gray,

If no later Will can be found, then this Will will have to be presented to the Probate Registry.

If the deceased has not tried to revoke or destroy the Will, and it was originally signed and witnessed correctly, then it will still be a valid Will. Whether or not the amendments will stand will depend on how they were carried out.

If they were carried out in the same manner as writing the Will originally, ie signed by the deceased in the presence of two witnesses the amendments will be valid.

If the amendments weren't made in that way, they will be disregarded and the original provisions will remain.

My advice is don't bother wasting your money consulting a solicitor, for if you have any doubt, the Will should be referred to a district judge or registrar for pre-lodgement consideration. Your local Probate Registry will give you guidance if you feel that is necessary.

Nicki

John_Gray wrote: »

This is somewhat second-hand, so I am not absolutely certain that this is the original will. I think it is...

If the "defacement of a will renders it null and void" then one could postulate that a wicked person with access could open the envelope in which it is kept, scribble all over it, then replace it in the envelope. The will-maker would believe that his will still stood, since he would have no reason to know that it had been invalidated.

Is this the intention of probate law?

Sorry, could have been clearer. My memory on all this is vague as its about 20 years since I was a student, and I've never practised as a probate lawyer (nor a barrack room one either, thanks Patchwork cat :rolleyes: ). However if someone else defaces the will, but its still legible, I believe that is OK. If the testator defaces the will though, to scribble out its provisions, then that would almost certainly be considered destruction of the will, rendering it invalid (unless the amendments were signed by the testator and witnessed by two witnesses). I just don't think local hero is right to say that if the amendments aren't witnessed that the scored out provisions will stand, though his advice about contacting the probate registry is a good idea.

You do need to find out whether it was the original will which was altered though, as writing on a copy of the will doesn't matter in the least. Are you the executor of the will, John. Is there a professional executor too, and if so what are their views on this?

SmlSave

I work at a solicitors and we got handed in a Will that had been written on - it did make it invalid as it was the original they had written on.

Pop to a local solicitors to ask - better safe than sorry!

localhero

First of all it needs to be established whether the Will has been damaged or there has been an attempt to alter it.

When dealing with a Will that has been damaged in some way, the court must decide whether the damage was caused by the deceased in an attempt to revoke the Will or part of it.

That is not the case here, so the courts must decide whether or not the alterations take effect or not. Section 21 of the Wills Act 1837 provides that no alteration made to a Will after execution has effect unless executed in the same manner as the Will.

For these purposes 'alterations' means alterations to the dispositions (gifts) or the appointment of executors which has an effect on the title to the grant.

Where for example, the address of an executor or beneficiary has been changed, or the deceased's wishes as to the disposal of his body have been changed, the district judge or registrar may accept the Will to proof without evidence as to unauthenticated alterations. Such alterations have no effect on the disposition of the estate.

Probate means 'approve'. Solicitors don't approve Wills, the Probate Registry does. So the OP should seek their guidance in the first instance, but from the facts I believe the original Will will still stand.