QUESTION 2

Once you have glanced through Mr. Thorn’s will presented by Mdm. Rose, you informed Mr. Thorn
for a verification. Mr. Thorn remembered and confirmed he made the said will.

Mr. Thorn later showed you the same will with additional facts as the following:

• Sara’s name had been strikethrough and was replaced with “Johnny” on top of Sara’s name,
since Sara already migrated to Australia;

• Tulip’s name also obliterated (eliminate) by a pencil. Mr. Thorn wrote Mdm.Rose’s name
beside it. He also put his signature and managed to get Daisy and Orchid to signed the same;

• At the clause of “if I have no children, the above property will be given to my wife” there is an
interlineation (the process of writing between the lines of an instrument; that which is written
between the lines of a document) after the word “wife” stated “and my parents”;

Answer the followings:

a) Determine the validity of altered will;

Definition

● Alteration of will basically means that the words of a will are obliterated or altered in some
way or interlineations are made, where its effects depends on after or before the execution
of the will.

Validity

● An alteration made before the execution of the will is valid as long as it is final rather than
deliberate/ in consideration.

● Re Bellamy’s Goods - written in pencil would render it merely deliberative, without evidence
to the contrary it would not be valid.

● Hawkes v Hawkes - pencilled alterations to a will written in ink will be presumed to have no
effect even though validly executed.

● An unattested alteration is rebuttably presumed to have been made after execution (except
where the alteration is the filling in of a blank space, when the rebuttable presumption is that
this was done prior to execution.) In view of the presumption, it is advisable to execute an
alteration even if it has been made before the execution of the will.

● According to the case Kell v Charmer, it was held presumed that the alteration to fill in a blank
is made before the execution of the will.

● Sectioon 15 of WILLS ACT states no obliteration, interlineation or other alteration made in

○ The manner of attestation must be done as specified in section 15 of wills act.

● In Re Shearn’s Goods, alterations made after the execution would be invalid unless they have
been executed in accordance with the formalities.

● In the Goods of Treeby, the memorandum was signed by the testator and attested by two
witnesses and referred to both the obliteration and interlineation, the will was admitted to
probate in its altered state.

● In Re Choo Kim Kiew, the testator made an alteration without any attestation by the
witnesses. It was held that it was an invalid alteration.

Application

● To apply to the current situation, Sara’s name had been strikethrough and was replaced with
“Johnny” on top of Sara’s name since Sara already migrated to Australia. This alteration may
be valid as long as it had been done by a pen rather than a pencil as according to the case Re
Bellamy’s Goods and Hawkes v Hawkes.

● On the matter of oblitering Tulip’s name was by a pencil and wrote Mdm.Rose’s name

● beside it, it would be seemingly as deliberative as according to the cases of Bellamy’s Goods
and Hawkes v Hawkes, where it can be deemed as invalid. He also put his signature and
managed to get Daisy and Orchid to sign the same. On this matter, he had fulfilled as according
s.15 of WA.

● At the clause of “if I have no children, the above property will be given to my wife” there is an
interlineation after the word “wife” stated “and my parents”. On this matter, as according to
s.15 of WA, if the amendment is made before the execution of will, it may be deemed valid.
But if it was made after the execution, it would be deemed invalid.

Conclusion

● In conclusion, the will altered by Mr Thorn is invalid due to the amendment made in pencil

b) If Mr. Thorn wishes to revive his will after the alteration, would you allow him to do the
same?

In a situation where a Testator revoked their will, and later wish to revive it, the issue that may arise
is whether the revival of the will is allowed.

Section 16(1) of Wills Act 1959:

No will or any part thereof which has been revoked in any manner shall be revived otherwise than by
re-execution thereof, or by a codicil executed in manner hereinbefore required and showing an
intention to revive the same.
Thus, it can be seen that there are 2 possible methods if a testator wishes to revive a revoked will or
codicil as stipulated under Section 16(1) of Wills Act 1959.

1. By re-execution - entails the signing and witnessing of the previously revoked will in the manner
prescribed by S.5 of WA 1959.

2. By a duly executed codicil that shows an intention to revive the revoked will.

● One of the requirements to revival of the will is that there must be a valid revocation of the
will. The testator must have revoked the will previously as without revocation, there is no
revival.

● Besides, there must be a clear intention of testator to revive the will.

○ Marsh v Marsh

■ The court held that the taping of the codicil to the will did not suffice as
evidence of an intention on part of testator that the will was to be revived by
this codicil, thus the will remain revoked.

○ Re Baker

■ The testator made a codicil, altering some of the provisions of the revoked
will. The court held that by thus concerning itself with reformulating the terms
of the revoked will, the codicil had shown an intention to revive the will.

Application

● Applying Section 16 of Wills Act 1959, it can be seen that it is possible for Mr. Thorn to revive
his will after the alteration in two possible ways which is by re-execution and by an executed
codicil showing the intention of Mr. Thorn to revive his altered will.

● The facts are silent as to whether the alteration of the will made by Mr. Thorn is a revoked
will.

● Thus, making a presumption that Mr. Thorn has made a valid revocation of the will, Mr. Thorn
will then be able to revive his altered will as it satisfies the first requirement in making a revival
of the will

● Next, Mr. Thorn must also show his intention to revive the altered will. Applying the case of
Re Baker, it can be seen that Mr. Thorn’s actions of altering some of the provisions of the
revoked will does show that Mr. Thorn genuinely does have the intention to revive the will,
otherwise he would not have taken the time to make some alterations to a revoked will.

Conclusion

Mr. Thorn can revive his will after the alteration.