Alterations, Revocation and Revival — SQE1 FLK2 Wills and Administration of Estates

A man executed a will in 2015 giving £10,000 to his sister, £10,000 to his brother, and the residue to his children. After a bitter quarrel in 2020 he took the will from his desk, drew a single line through his sister's legacy, and wrote revoked in the margin beside it. Nobody else was there. Nobody signed anything. The struck-through words can still be read quite easily.

Does the sister get her £10,000? Yes. All of it. He meant to cut her out, he wrote it on the document itself, and it changed nothing. This is Alterations, Revocation and Revival, and almost every trap in it comes from the same place. Intention on its own does nothing.

Here is the route. Alterations first, and why most of them fail. Then the one exception that does work. Then codicils against new wills. Then the four ways a will is revoked: destruction, a later document, marriage, and the special case of divorce. Then dependent relative revocation. And finally revival, and how it differs from republication.

Start with what an alteration is. Any change to the text of a will after it has been executed. Crossing words out, adding new ones, writing between the lines, attaching something. And the timing of the change decides everything about it.

Alterations made before execution are easy. They form part of the will's original text. The testator and the witnesses sign the will in its altered form, and no special formality applies beyond the ordinary execution requirements.

After execution is a different world. Section 21 of the Wills Act 1837 provides that no alteration made after execution has any effect unless it is executed with the same formalities as the will itself. The testator signs or acknowledges the alteration, and two witnesses present at the same time sign it too.

Which makes post-execution alterations awkward in practice, and that is deliberate. Try one. A testator alters a legacy and gets it signed by herself and one witness. Good enough? No. Two witnesses, or the alteration fails.

And when it fails, what happens? It is simply ignored. The will is construed as if the alteration had never been made, and the original text takes effect. That is why our man's sister is paid.

Two consequences follow. An invalid alteration does not invalidate the rest of the will, so the valid provisions stand. And where it matters whether a change was made before or after execution, the court looks at evidence: ink colour, handwriting, the testimony of witnesses.

Now the exception, and it is the point examiners build questions on. Section 21 treats obliteration as a mode of alteration. But an obliteration also revokes the words obliterated where, as a result, the original wording is no longer apparent.

Apparent means readable by natural means, on ordinary inspection of the document, without extrinsic aids or physical interference. So the test is not what the testator wanted. It is whether you can still read the words.

Put the two side by side. A single line through a legacy, with the figure still legible underneath: ignored, and the legacy stands. A thick block of ink over the same legacy, so the words cannot be read at all: revoked, and the beneficiary takes nothing.

And note where the boundary sits. If the words can be recovered only by infra-red imaging, they are not apparent, which confirms the revocation rather than rescuing the gift. Ordinary inspection is the standard.

So if a client wants a change, do not let them touch the will. Two proper routes exist. A codicil, which is a supplementary document amending the will rather than replacing it, executed with the same formalities as a will.

Or a new will, which for anything significant is usually better. A new will should contain an express revocation clause revoking all previous wills and codicils. Codicils suit minor changes, one or two amendments. Pile them up and you create confusion, and documents that can be lost or separated.

Now revocation proper, and there are four routes. Destruction. A later will or codicil. Marriage. And divorce, which is the odd one out because it does not revoke anything.

Destruction first. Section 20 of the Wills Act 1837 allows a will to be revoked by burning, tearing, or otherwise destroying it. Burning, tearing, shredding. And it must be done by the testator, or by someone else in the testator's presence and at the testator's direction.

Read those last words carefully, because they are a favourite. A man in hospital telephones his wife and asks her to burn his will. She burns it at home that afternoon. Revoked? No. Not in his presence, so the statutory requirement is not met and the will survives.

And destruction needs two things together. The physical act, and the intention to revoke. All the destroying in the world without the intention will not do it, and all the intention in the world without the act will not either.

Which is where symbolic destruction fails. Drawing lines through a will, or writing cancelled across it, is not destroying it. That is Cheese v Lovejoy. And the written words do not revoke it as a document in writing either, because they were not executed with a will's formalities.

Contrast a case where the act is real. Cut off and burn the strip carrying the signature and the attestation, intending to revoke, and the whole will goes. That is Hobbs v Knight: destroy the part on which the will's validity depends and you destroy the will.

The intention requirement cuts the other way too. A will lost in a fire or a flood is not revoked, and the court can admit a copy to probate where the contents can be proved.

But there is a presumption to respect. Where a will last known to be in the testator's possession cannot be found at death, it is presumed destroyed by the testator with the intention of revoking it. Without evidence rebutting that presumption, the estate passes on intestacy.

Second route, a later will or codicil, also under section 20. Most wills carry an express revocation clause revoking all previous wills and codicils. That is the clean way, and it is clear evidence of intention.

Without such a clause a later will still revokes an earlier one by implication, but only so far as the two are inconsistent. Where the provisions cannot stand together the later prevails, and the court reads them together to give effect to the overall intention.

So a later will that gives away the whole estate leaves nothing for the earlier one to operate on. But a later gift of one house revokes only the earlier gift of that house. And a codicil can revoke specific provisions, leaving the rest of the will in force, read together with the codicil as one document.

One drafting warning. A clause revoking all former wills may not clearly revoke codicils. Say what you mean, and name both.

Third route, and the one clients never see coming. Under section 18 of the Wills Act 1837 a will is automatically revoked by the testator's marriage. Forming a civil partnership does the same, under the Civil Partnership Act 2004.

Notice how much it revokes. The whole will, not just the gifts to the new spouse. So a man who leaves everything to his brother and then marries dies intestate, and the brother takes nothing at all. The intestacy rules then decide, and where there is no issue the surviving spouse takes the whole estate.

There is an exception, and it is narrow. A will made in contemplation of a particular marriage is not revoked by that marriage. Section 18(3) of the Wills Act 1837, inserted by the Administration of Justice Act 1982, sets the conditions.

It must appear from the will that the testator was expecting to marry a particular person, and that the testator intended the will not to be revoked by that marriage. And the marriage must actually take place.

Two traps live in that word particular. A clause referring to my future marriage, identifying nobody, does not satisfy the first condition however clearly it satisfies the second. And it must appear from the will. Facts outside the document cannot supply the missing identification.

The second trap is the wrong wedding. The exception protects the will only against the marriage actually contemplated. A testator who names one intended spouse in the will and then marries somebody else has a revoked will, because that is not the marriage the clause was about.

Fourth, divorce, and here everything changes. Section 18A of the Wills Act 1837 provides that divorce or dissolution does not revoke the will at all. Instead it treats gifts and appointments to the former spouse as if that spouse had died on the date of the divorce.

Work through what that does. A legacy to the former wife fails and, with no substitute named, falls into residue. Where there is an express gift over to the children, that gift over takes effect. A life interest for the former spouse ends the same way, and the trust property passes on under the will.

It reaches appointments too. Naming the former spouse as executor or trustee takes effect as if she had died at the date of the divorce. She cannot act, unless the will shows a contrary intention. Because a will only operates on death, that question always arises after the divorce has taken effect.

And note the trigger. It is the final order dissolving the marriage. A couple who separate, start proceedings and never finish them are still married, so section 18A never bites and the spouse takes under the will exactly as written.

So hold the contrast. Marriage revokes the whole will. Divorce revokes nothing, and merely writes the former spouse out of it. Getting those two the wrong way round is the single commonest error in this topic.

Fifth, dependent relative revocation, which rescues testators from their own mistakes. It is a doctrine of conditional revocation. A testator revokes an earlier will, intending a new one to take its place, and the new one turns out to be invalid. The court may treat the revocation as conditional on the new will being effective.

If it was conditional, and the condition failed, the revocation never took effect and the earlier will can be admitted to probate. Three things must appear: that the testator revoked the earlier will, that the revocation was conditional on the new one being effective, and that the new one is invalid.

Evidence is what decides it. Statements by the testator about their intentions, drafts of the new will showing what was intended, the circumstances of the execution. Without clear evidence the doctrine is not applied, and a testator who simply destroys a will with no replacement in mind dies intestate.

Sixth, revival, and the rule to carry is that revival is never automatic. Section 22 of the Wills Act 1837 governs it. Destroying a later will does not bring an earlier one back to life.

So a man who revoked his 2016 will by making a 2019 will, and then tears up the 2019 will hoping the earlier one springs back, gets neither. The 2016 will stays revoked, the 2019 will is destroyed, and he dies intestate.

Two routes actually revive. Re-execution of the revoked will with the formalities a will requires. Or a codicil which shows an intention to revive it, executed properly.

And the intention must be explicit. A statement such as I revive my will dated 1 January 2020 is enough. Mere reference to the revoked will, without words of revival, is not. A codicil that mentions an old will in passing leaves it exactly as revoked as it was.

Last, republication, which is a different animal and often confused with revival. Executing a codicil republishes the will. The will and the codicil are read together as if the will had been executed on the date of the codicil.

That matters for construction, because references in the will are then read against the circumstances existing at the later date. A legacy to my housekeeper, republished by a codicil, speaks to whoever holds that post at the codicil's date, not the person who held it when the will was made.

It can also cure a defect. A memorandum which did not exist when the will was made could not be incorporated by reference. But it is incorporated where a later codicil republishes the will and the memorandum exists by then. That is Re Lady Truro.

So keep the two apart. Revival brings back a will that was revoked, and needs a clear intention to revive. Republication treats a will that is still alive as if executed later, and happens automatically whenever a codicil is executed.

A word on how SQE1 tests this. You will not be asked to recall a case name or a section number. You get a scenario, five answers, and one instruction: pick the best. This topic is mostly one statute, and the Wills Act 1837 is doing nearly all of the work.

If you keep only three pegs. Section 21, where an unattested alteration is ignored unless the words stop being apparent. Section 18, where marriage revokes the entire will. And Cheese v Lovejoy, where crossing a will out and calling it cancelled destroyed nothing at all.

Four traps. One: intention is never enough by itself. Not for an alteration, which needs attestation. Not for destruction, which needs a real act. A testator who plainly meant to change the will, and did it the wrong way, has changed nothing.

Two: the destruction must be by the testator, or by another person in the testator's presence and at the testator's direction. Both limbs. A will burned at the testator's request but out of the room is not revoked.

Three: marriage revokes the whole will, and divorce revokes none of it. Candidates reverse these under pressure. Marriage produces intestacy. Divorce just treats the former spouse as having died at the date of the divorce.

Four: revival is never automatic. Destroying a later will does not resurrect an earlier one, and a codicil that merely mentions a revoked will does not revive it. Nothing short of re-execution, or an express intention to revive, will do.

Quick check. A woman executed a will in 2020 while she was engaged. It left her whole estate to her parents. It included a clause reading: this will is made in contemplation of my future marriage and is not to be revoked by it. Nowhere does the will identify the man she was engaged to, or refer to the engagement. In 2023 she married that same man, never made another will, and died in 2024.

Was the 2020 will revoked by the marriage? Three candidates. One: yes, because a will made before marriage cannot survive it. Two: yes, because the will does not show that she was expecting to marry a particular person. Three: no, because she married the very man she was engaged to. Pause here if you want a moment.

The answer is two. Section 18(3) requires it to appear from the will that the testator was expecting to marry a particular person. It must also appear that she intended the will not to be revoked by that marriage. A clause referring only to a future marriage identifies nobody, so the first condition fails however clear the second is. She died intestate.

Why the others fail. Option one is too wide, because a will made before marriage does survive where section 18(3) is satisfied. Option three asks what happened afterwards. The question is what appears from the will, and facts outside it cannot supply the missing name.

Five things to take away. One: an alteration after execution needs the will's own formalities, and without them it is ignored. Our man's sister takes her £10,000 because the words he struck through can still be read.

Two: the exception is obliteration. If the original wording is no longer apparent on ordinary inspection, those words are revoked. Three: destruction needs the act and the intention, done by the testator or in the testator's presence and at their direction.

Four: marriage revokes the whole will unless section 18(3) is satisfied for that particular marriage, while divorce revokes nothing and simply treats the former spouse as having died. Five: revival is never automatic, and republication is the other thing entirely. Next time, Interpretation of Wills.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.