Amendments to any existing will are subject to the terms of the Wills Act 1837; and so, on this occasion the revisionary wishes of the now deceased fell victim to the powers of statute, when after coalescing with his closest friends, insufficient steps were taken to enforce the redrafted will, resulting in a loss of beneficial rights and the sting of natural law.
In 1981, the testator drafted a will that included apportioned bequests to an extended number of acquaintances, some of which stood to benefit from his generosity in substantial quantity.
In 1984, and for one reason or another, the testator chose to amend the will so as to allow for partial intestacy, along with revised percentages of benefit for those closest to him.
Having executed the changes in the company of those elected to attest his actions, additional text was added at the foot of will in such a way that showed the will had been amended and attested by the two parties present, yet with the exception of a new signature by the testator himself.
Under powers of the Wills Act 1837, section 9 (as substituted by the Administration of Justice Act 1982 section 17) reads:
“No will shall be valid unless (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”
While section 21 of the 1837 Act reads:
“[N]o obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except 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 witnesses 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.”
Or put simply by Buckley J in In re Hay:
“[I]it is quite plain that an alteration in a duly executed will made after the execution thereof is not effective unless the alteration is executed in the manner required by the statute for the execution of the will.”In re Hay
Unfortunately, for both the testator and the defendants this resulted in the amended will no longer standing as valid on grounds that no new signature had been added by the testator during the amendment, and that the signatures of those witnessing were not considered as that attesting the new will, only the amended statements.
This had a secondary effect, inasmuch as at the point of litigation through a writ challenging the validity of the 1984 will, the claimant was now unable to receive any residual estate, while those who also stood to gain from the revised percentages would have been left unable to claim under the new will, as they were acting as both witnesses and beneficiaries, which is unlawful under section 15 of the Wills Act 1837, while the court reminded the parties that:
“[I]f an alteration to a will is to be valid under section 21, then the alteration itself has to be “executed in like manner as hereinbefore is required for the execution of the will.” That means that the alteration must meet all the formal requirements of section 9.”