Mistakes and Alterations in a Will (16A:IV)
A will may be changed by executing a new will, executing a codicil, or altering the will before it is executed. Where a Will-maker wants to alter a will, section 54(2) of WESA requires that the Will-maker sign and the witnesses attest the signature in the margin or near to the alteration, or at or near to a memorandum written in the will referring to the alteration. An alteration should be so attested even if made before the will itself is executed. This will avoid subsequent litigation, which may arise if an unattested alteration appears to have been made after the execution of the will. Where a mistake is made when drafting a will, the safest course is to draw up a new, corrected will.
There are three reasons why executing a new will may be a preferable course of action:
- a new will avoids any danger of a codicil not adequately referring to the correct will;
- when only one document exists (i.e. the new will) there is less likelihood of misinterpretation; and
- if a codicil is used to revoke a gift made in the will, the party who would have received the gift will be informed of the change made by the will-maker, which could cause personal discord in the Will-maker’s relationship with that person.
An unattested alteration made after the will is executed is invalid and may also invalidate any existing part of the will that the alteration obliterated or made impossible to decipher. However, it is important to note that section 58 of WESA allows a court to recognize any document that gives effect to the testamentary disposition of the deceased, even if it does not comply with the formalities of WESA. (See Section III.F, above, which also discusses the power of rectification under section 59).
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