Study Set Content:
Is a clause in a will that states that T cannot ammend the will valid?
No, not valid or binding.
2 main ways a will can be amended...
- Changes/amendments can be made by using codicil (codicil must comply wit s2(1)(a) formalities)
- Changes can be made to an existing will by interfering with writing (must comply with S2(1)(b) formalities)
Amendments made before execution
Amendments made during drafting of will, no formalities have to be complied with but it is customary for T and witnesses to sign next to amendment
Amendments made after execution
Valid will has already been executed, now T wants to make changes. Amendments must comply with S 2(1)(b) in order to be valid
If lines are drawn through all three pages of will this constitutes a
Revocation of the will and not amendment
Examples of amendments
Inserting words, altering words, crossing out, using tippex, cutting out etc
What are the formality requirements for amendments ito S2(1)(b)
i Where an amendment is made, amendment is identified by T or amanuensis signature
ii. T or amanuensis must sign amendment in the presence of 2 competent witnesses
iii. 2 competent witnesses must identify the amendment by signature in the presence of each other and T or amenuensis
iv Where T uses mark to identify or amanuensis signs the amendment CoO must be present
Where should T or amanuensis make signature to identify amendment
As close to the amendment as possible
Where does witnesses have to sign to identify amendment
Next to the amendment
Do the witnesses have to be the same witnesses who signed the original will
No, witnesses acknowlidging amendment can be other people
Cerificate wording of CoO in case of amendment
Certificate must state that CoO is satisfied with the identity of T and that it is the wishes of T to make this amendment.
Section 2(3) regarding condonation of will applies to
- Non-complience with formalities of execution of will ito S2(1)(a)
- As well as non-complients with formalities for the amendment of a will S2(1)(b)
Three requirements for condonation of amendment
- Amendment must be a written document
- Amendment must be drafted/executed person who has since died since the drafting thereof
- The intention for this amendment to be the final amendment must exist
Cases of amendment
- Smith v Parsons
- Taylor v Taylor
