Amendments to a Will A testator, having drawn up a Will, may wish to make amendments to it, either before they execute it or after. In most cases, it is better to prepare a new Will or a codicil to the Will making the amendment in clear terms. If the alteration is to be made in a Will after execution, it must comply with the provisions of section 21 of the Wills Act 1837 (WA 1837) which provides: 'No obliteration, interlineation or other alteration made in a 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 herein-before 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 some other part of the will opposite

This Practice Note discusses the rules of formal validity of Wills (which will determine whether the Will is admissible to probate) where there is a foreign connection. Material or essential validity of a Will, on the other hand, relates to whether the dispositions contained in the Will comply with the law of the jurisdiction which governs succession to the estate. Determining which jurisdiction’s law of succession may apply to the estate is discussed in International succession—basic principles below. Distinction between movables and immovables English law makes a distinction between movable and immovable assets. Under English private international law, succession to movables is governed by the law of domicile (lex domicili) and succession to immovables is governed by the law of the country in which the immovable property is situated (lex situs). Therefore a distinction is drawn between real property and all other property. Trom 6 April 2025 the UK introduced a residence-based inheritance tax regime, replacing the concept of deemed domicile with long-term residence for tax purposes. This change affects liability

Format of a Will There is no prescribed way in which a Will has to be drafted but convention over many years has developed a tried-and-tested format. While styles may differ between those preparing Wills, the general order of clauses is fairly consistent. This helps in reading the Will and avoids errors of omission, as well as providing a consistent method of using technological means to produce Wills. The usual order of clauses is: • opening and revocation • declarations (as to domicile, confirming funeral wishes etc) • appointment of executors and trustees • appointment of guardians • general legacies • specific legacies and devises • residuary gifts • powers of executors and trustees • attestation Not all of the clauses will be used all of the time, but as long as this basic format is used the draftsperson should be able to ensure that everything which should be in the Will is included. Opening and revocation The first sentence of the Will is used to identify the testator by name and address.

Conditions of incorporation A testator may incorporate in their Will a document that has not been duly executed by them, and so make that document part of their Will (the doctrine of incorporation by reference) even though it is unattested. Before the doctrine of incorporation can be applied, the document sought to be incorporated must be: • in existence at the time the Will is made • referred to as being in existence • clearly identified There are exceptions to this, however. The document need not be of a testamentary form or character. The document must be in existence at the time the Will is made The document must already be in existence at the time the Will is executed; it cannot be one that is to come into existence at a future date. The onus of proving the identity of the document and its existence at the date of the Will lies on the party seeking to rely on the doctrine. In Singleton v Tomlinson, the testator

If a Will is rational, in regular form and appears to be duly executed, the following presumptions apply: • due execution • capacity • knowledge and approval Presumption as to due execution The court will presume due execution if presented with a Will that, on the face of it, appears to be duly executed by applying the principle omnia praesumuntur rite esse acta (all things are presumed to be done in due form). This may be rebutted but strong evidence is required: 'The strongest evidence would be required to show that a will had not been executed in accordance with the Act when it appeared from its face to have been properly executed, and there was no question but that the will represented the testator's intention. The court should be slow on the basis of extraneous evidence to hold that such a will had not been properly executed, since evidence of events that had happened years previously was likely to be unreliable. To do so would be to deprive the testator of giving effect to his wishes, which

Statement of the privilege Section 11 of Wills Act 1837 (WA 1837) provides 'that any soldier being in actual military service, or any mariner or seaman being at sea, may dispose of his personal estate' without any formalities (that is, the Will does not have to be in writing or, if the Will is in writing, it does not have to comply with the usual formalities under WA 1837, s 9) as to execution. The provision has been extended to real property situated in England or Ireland by Wills (Soldiers and Sailors) Act 1918 (W(SS)A 1918), which provides that testamentary dispositions of real property (as well as personalty) can be made by privileged Will. The Wills Act 1837 does not itself require the maker of a privileged Will to be domiciled in England and Wales when the Will is made. Questions of domicile arise in determining the applicable law governing formal validity under the Wills Act 1963, which recognises several alternative connecting factors, and in the probate context NCPR 1987, r 18 refers to the deceased's

The court's power to rectify A claim for rectification is not actually a probate claim as such, but it is relevant under that general heading as an extension of a claim for want of knowledge and approval where a mistake in the drafting of a Will has been made. Rectification is available for deaths after 31 December 1982 under section 20 of the Administration of Justice Act 1982 (AJA 1982) which provides that: 'If a court is satisfied that a Will is so expressed that it fails to carry out the testator's intentions, in consequence (a) of a clerical error; or (b) of a failure to understand his instructions, it may order that the Will shall be rectified so as to carry out his intentions.' Despite the positive nature of the statement, this power of rectification is discretionary and the conditions under which this power operates are set out in AJA 1982, ss 20(2)–20(4): (2) An application for an order under this section shall not, except with the permission of the court, be made after

CORONAVIRUS (COVID-19): For Wills made on or after 31 January 2020, the formal requirement for a valid Will to be witnessed in the presence of two witnesses includes both physical and virtual presence, to allow Wills to be validly witnessed remotely by way of video conference. For the latest guidance on this temporary change (which takes effect for Wills made up to and including 31 January 2024), see Practice Note: Coronavirus (COVID-19)—Wills [ARCHIVED]. This change is introduced by the Wills Act 1837 (Electronic Communications) (Amendment) (Coronavirus) Order 2020, SI 2020/952 which amends Wills Act 1837 (WA 1837), s 9 and the Wills Act 1837 (Electronic Communications) (Amendment) Order 2022, SI 2022/18. Note that the guidance below relates to WA 1837 in its unchanged form. For details of the new rules and the changes to WA 1837, s 9, see Practice Note: Coronavirus (COVID-19)—remote witnessing of Wills [ARCHIVED]. STOP PRESS: With effect from 2 November 2020, the Non-Contentious Probate Rules 1987, SI 1987/2024 (NCPR 1987) are amended by the Non-Contentious Probate (Amendment) Rules 2020, SI 2020/1059 to provide for the use of witness statements

Private Client analysis: This decision confirms the evidential weight required to rebut allegations of want of knowledge and approval and undue influence in probate disputes. The High Court upheld a professionally drafted July 2020 Will, despite suspicious circumstances arising from a recent inconsistent Will and the testator’s illness. Detailed solicitor attendance notes, clear explanations of complex provisions, and contemporaneous video evidence were determinative in establishing informed and voluntary testamentary intention. The court reaffirmed the stringent test for undue influence, requiring proof of coercion rather than persuasion. Practically, the case underscores the importance of robust Will-drafting procedures, comprehensive records, and anticipating digital evidence in contentious probate litigation. Written by Zara Yusuf, barrister of Three Stone.

Dispute Resolution analysis: Master McQuail considered the validity of an assignment of certain loans where the assignee had signed on the assignor’s behalf as his attorney. She held that section 136 of the Law of Property Act 1925 (LPA 1925) required the personal signature of the assignor for legal validity. As such there had been no legal assignment. There had, however, been an assignment in equity, in the circumstances of the case. Written by David Juckes, barrister at Hailsham Chambers.

This Checklist sets out the matters that a practitioner should consider when checking whether an administrator has been validly appointed. Often this will form the basis of a report to be provided to the administrator to provide assurance that they are validly appointed and may act as an administrator going forward with confidence. It could also be requested by a purchaser in a sale of a business in administration, or by another interested stakeholder such as a bank. Shortly following their appointment, administrators will usually ask their solicitors to review the appointment documentation and circumstances surrounding the appointment and provide a letter confirming that they have been validly appointed. This is an assurance for the administrator that they are acting validly going forward. If they find later on that they have not been validly appointed, they could be challenged by a creditor or one of the directors or the company. For further information on how to make an appointment, see Practice Notes: • Out-of-court administrator appointments—who can appoint and in what circumstances?

In Briggs v Gleeds (Head Office), the High Court held that a number of scheme documents that were not correctly executed were invalid except where the scheme rules did not actually require deeds. Amendments could however be made effective on the basis of augmentation or acceptance of an offer by members.