I am acting for an Executor of a home made will. After execution (and I have confirmed this by contacting the attesting witnesses) several of the bequests were redacted and are now illegible. The Probate court have told me that I need to produce a typed engrossment of the will restoring the original content - but I cannot do this as it is impossible to read what was originally stated as the original wording is completely redacted.
I feel like I am going round in circles, and wonder if anyone has encountered a similar problem. In addition I wonder whether anyone knows any counsel who would be good to instruct to help me over this hurdle?
This is governed by s.21 Wills Act 1837:
No alteration in a will shall have any effect unless executed as a will.
Whilst the original wording was only considered “apparent” if it could be identified “by natural means” (e.g.by holding it up to a strong light) it may be that science might now be allowed to assist in identifying the original wording, provided that it does not involve physical interference with the will itself.
I wonder if the Probate Court might be willing to rule on whether the original words are “not apparent” before expending further time and costs on instructing Chancery counsel, following which the court will need to opine when the formal grant application is submitted.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
What you are describing sounds like a text book ‘obliteration’ which would lead to a partial revocation of the Will. If the words are not “apparent” in accordance with s21 Wills Act, it is not permissible to rely on extrinsic evidence such as a draft Will (In the Goods of Horsford (1874)).
I have never had to argue this with the Probate Registry so would be very interested to know how you get on in the end.
If you do need Counsel’s help it may be worth speaking to Ruth Hughes at 5 Stone Buildings as she specialises in estates and COP work.
It sounds as though the probate registry has got the wrong end of the stick here.
If the original wording is impossible to read, then the situation is covered by s. 21 of the Wills Act 1837. The relevant part is: “No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will shall not be apparent…”
If the testator has really managed to render the relevant gifts illegible (so that they cannot be seen using natural means), then they don’t take effect and the will should be proved accordingly. Perhaps the probate registry haven’t appreciated that the original words can’t be read?