Amending Wills – Know the dangers!

Introduction

The validity of hand written amendments and obliterations to a Will recently came before the Court of Appeal. The initial decision of the High Court and the subsequent ruling of the Court of Appeal shows the difficulties that can arise where a person has a Will in their personal possession and subsequently amends that Will by making hand written markings to it.

The McEnroe Case

In the case of the late Mary McEnroe, the Court of Appeal had to review these very issues. The validity of the original Will (i.e. before the handmade amendments) was accepted. Three subsequent alterations had been made to the Will with a pen as follows:-

• The original executor’s name had been scribbled out and replaced with an illegible name.

• A bequest of money had been scribbled out so as to render it illegible.

• The word “say” was added to a sentence so that it read “This is to say thanks for all the meals cooked and all the house cleaning which they did for me…”.

Sections 85 and 86 of the Succession Act, 1965 set out the law on how revocations of Wills shall occur and how alterations are to be treated. The main issue is that s.86 states that interlineation or alteration made to a Will after its execution shall not be valid unless when done the signature of the testator and the signature of each witness is made in the margin or some other part of the Will opposite or near to such alteration. The difficulty with Ms McEnroe’s Will is that the provisions of this section were not followed and a court had to rule whether or not the Will could then be admitted to probate given that the Probate Office had refused it.

The High Court ruled that the unexecuted alterations of the Will rendered the Will a different document to the Will that had been originally validly executed.

This was appealed to the Court of Appeal who ultimately overturned the decision and held the Will remained valid despite the alterations made. The Court of Appeal stated that the scoring out of words to the extent that the relevant clause in the Will became illegible amounted to a destruction within the meaning of s.85(2) of the 1965 Act. It indicated that the rest of the Will remained valid. The addition of the word “say” did not alter the meaning of the Will and this amendment could effectively be ignored.

Conclusion

This case highlights the obvious issues that arise when attempting to make hand written amendments to a Will. Simply crossing out of words, for example, by striking a line through them which leaves the wording still legible and without proper execution will not have the effect of revoking that wording. The wording in question would need to be scored out such that the wording becomes fully illegible and amounts to a “destruction” under the 1965 Act.

If you want to amend your Will, then the simplest means by which to do it is to execute a new Will which sets out your intentions, or alternatively, have the amendments done in a manner that complies with the requirements of the Succession Act, 1965.

For further information on this topic, please contact Brendan Sharkey at bsharkey@reddycharlton.ie