19.2 Executors, Alterations, Revocation and Interpretation

Once you can spot a valid will, FLK2 asks what happens next on the face of the document: who may prove it, how it can be altered or supplemented, how it is revoked, what a gift actually is, and when a gift fails. From September 2026 the specification splits revocation by marriage or civil partnership from the effect of divorce or dissolution. Do not treat those as the same outcome. This independent OpenExamPrep section works through each topic as a newly qualified solicitor would on a file.

Appointment of executors: eligibility

The testator may name any person as executor, including a friend, a beneficiary, a solicitor, or a trust corporation. Eligibility is about who can take a grant, not about who would be a wise choice.

A minor can be named but cannot take a grant of probate until 18. Meanwhile another executor may prove, or an administrator may be appointed, often with power reserved to the minor. A person who lacks mental capacity cannot take a grant. Bankruptcy does not automatically disqualify an executor, but it is a suitability issue and may justify passing over. A criminal conviction does not automatically bar a grant.

Senior Courts Act 1981 s.114 caps the number of persons entitled to a grant of probate at four. If the will names six friends, at most four may prove. The others may have power reserved. A sole proving executor who is an individual can create a chain of representation under Administration of Estates Act 1925 s.7: that executor's own proving executor becomes executor of the original testator. The chain does not run through an administrator.

An executor derives title from the will and, in principle, from death. The grant is the court's recognition of that title and the working authority banks and registrars will accept.

Suitability

FLK2 now lists suitability separately. A person may be eligible and still be a poor or improper choice. Consider willingness to act, geography, age and health, professional skill on a complex estate, hostility between co-executors, and conflict of interest (the named executor's gift is under challenge, or the executor is the alleged undue influencer).

The court may pass over an executor and appoint someone else as administrator under Senior Courts Act 1981 s.116 if special circumstances make that necessary or expedient. A person who wants to force a named executor to take a stand can issue a citation to accept or refuse a grant. A caveat (PA8A) blocks a grant while a dispute is investigated; it is not itself a removal order.

Advise the client who is choosing executors: name people who will act, name substitutes, consider a professional executor on a contentious or tax-heavy estate, and avoid naming someone whose benefit is likely to be attacked unless independent advice is on the attendance note.

Renunciation and reservation of power

An executor who has not intermeddled may renounce. Intermeddling means acts of administration that show an intention to accept the office: collecting in assets as executor, paying debts beyond what is needed to preserve the estate, or holding out as executor. Mere acts of necessity (arranging the funeral, locking the house, notifying the bank of the death) usually do not amount to acceptance.

Renunciation is in writing, signed, and filed at the probate registry (commonly Form PA15). Once filed it is generally final. Retraction needs court permission. After a grant has issued, the executor cannot simply renounce; removal or retirement needs the proper court route.

Power reserved is the everyday alternative where several executors are named and only some wish to prove now. Those who prove take the grant; the others have power reserved and may later apply for double probate. Power reserved keeps the chain of representation and the testator's choice alive without forcing everyone to act on day one.

Example. A will names three children as executors. One lives abroad and does not want to prove now. The other two take the grant with power reserved to the third. If the third later returns and wishes to act, double probate is the mechanism. If instead the third has already collected rents as executor and advertised for creditors, they have likely accepted and cannot renounce.

Alterations before and after execution

Before execution, manuscript changes, crossings-out, and extra clauses are part of the will if they are present when it is signed and attested. Best practice is to initial and date every change in the margin so nobody later argues that the ink was added afterwards.

After execution, Wills Act 1837 s.21 is strict. No obliteration, interlineation, or other alteration made after execution is valid unless the words or effect of the will before the alteration are not apparent, except so far as the words or effect are not apparent, or unless the alteration is executed like a will (signed and attested, in practice often in the margin by the testator and two witnesses).

If the original words can still be read with the natural eye, those original words stand. If the original words are no longer apparent, that part is treated as if it had been blank, which can destroy a gift or open a partial intestacy. Unattested alterations are presumed to have been made after execution unless the evidence shows otherwise (matching ink, the draftsman's evidence, or initials made at the signing meeting).

Pencil marks are sometimes treated as deliberative rather than final, but do not rely on that as a planning tool. If the client wants a change after signing, use a codicil or a new will.

Use and effect of codicils

A codicil is the proper instrument for a limited change: a new executor, a changed pecuniary legacy, a corrected name, or a partial revocation. It must comply with section 9. It should identify the will (date and, if needed, the draftsman) so there is no doubt what it supplements.

A valid codicil republishes the will. The will is then read as if it had been executed at the date of the codicil. That matters for descriptions of property, for class gifts, and for treating the will as speaking from a later date (see also s.24 on property). Republication does not automatically cure every defect, but a later duly executed codicil can confirm the will "as altered" and so execute an alteration that would otherwise fail section 21.

Revival of a revoked will is a different statutory idea (s.22): a revoked will is not revived by revoking the revoking instrument unless the testator shows an intention to revive, by re-execution or by a duly executed codicil. If the client destroyed will 1 thinking that would bring back will 2, check dependent relative revocation: the court may treat the destruction as conditional on the revival succeeding, and admit will 1 to probate if that condition failed.

Several codicils can stack. On inconsistency, the later instrument prevails to the extent of the clash. Destroying a codicil does not, by itself, destroy the parent will. Destroying the parent will with intention to revoke is still a s.20 revocation even if a codicil survives, unless the codicil is an independent testamentary document that can stand alone.

Revocation methods

FLK2 lists four methods. Learn them as a closed list, then add the divorce rule as a separate effect.

Cheese v Lovejoy (1877) 2 PD 251 is the destruction chestnut: writing "revoked" across a will and throwing it among waste papers is not destruction. There must be a physical act of burning, tearing, or otherwise destroying. If someone else destroys the will, presence and direction are mandatory. A telephone instruction to a solicitor who then shreds the will in another town does not satisfy s.20.

If a will was last known to be in the testator's possession and cannot be found at death, the law presumes the testator destroyed it with intention to revoke. The presumption is rebuttable (house fire, solicitor's lost file, evidence the testator spoke of the will as still operative). A copy may then be admitted if the presumption is rebutted and the contents can be proved.

Converting a civil partnership into a marriage does not revoke a will made in the civil partnership. Judicial separation does not revoke a will.

Effect of divorce or dissolution

This is not a fifth method of revoking the whole will. Section 18A (divorce, nullity, or dissolution of marriage) and section 18C (dissolution or nullity of a civil partnership) leave the will valid. What changes is the former spouse or civil partner's place in it.

Unless a contrary intention appears in the will:

• property given to the former spouse or civil partner passes as if that person had died on the date of the order;
• any appointment of them as executor or trustee takes effect as if they had died on that date;
• a power of appointment conferred on them is treated in the same way.

The rest of the will stands. Residuary gifts to others, guardianship of children named in other clauses, and gifts to the former spouse's relatives (unless worded through the former spouse) need a clause-by-clause read. A survivorship or substitution clause in favour of the former spouse's children may then operate. If the failed gift was of residue and there is no substitution, watch for a partial intestacy.

Example. In 2020 Tariq's will appoints his wife Amira executor and leaves her the residue, with a gift over to his brother if she predeceases him. They divorce in 2025. Tariq dies in 2026 without a new will. The will is not revoked. Amira is treated as having died on the divorce date, so she cannot take the grant and she does not take residue. The brother takes residue under the gift over. If there had been no gift over, residue would pass on intestacy.

If Tariq later marries someone else, s.18 then revokes the 2020 will unless it was made in contemplation of that later marriage. Divorce and remarriage are therefore consecutive, different events. Do not advise a divorced client that "the will died with the marriage". Advise that gifts and appointments to the former spouse have fallen away, and that a new marriage will revoke what is left unless the will is rebuilt.

Types of gift

Add class gifts ("to my grandchildren"), substitutional gifts, and life interest / remainder structures. Class-closing rules (the Andrews v Partington line) can fix the class when the first member becomes entitled.

Failure of gifts

Ademption hits specific gifts when the asset has been sold, given away, or has changed into something that is not the thing described. A mere change of form (company reorganisation that replaces "my shares in A plc" with successor shares) may save the gift; a sale and a later purchase of similar shares usually does not.

Abatement applies when the estate cannot pay all gifts. The usual order is residue first, then general (including pecuniary) legacies, then specific gifts. Demonstrative gifts abate with general gifts only so far as they cannot be met from the named fund.

Lapse applies when the beneficiary predeceases the testator. The default is that the gift falls into residue (or, if it was residue, intestacy). Wills Act 1837 s.33 saves a gift to the testator's child or remoter descendant who predeceases leaving issue who survive the testator: those issue take per stirpes, unless a contrary intention appears. Section 33 does not save gifts to siblings, friends, or spouses. Section 33A (inserted by the Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Act 2011) treats certain disclaimers and forfeitures as a predecease so that s.33-style substitution can operate.

Other failure rules: s.15 (attesting beneficiary); s.18A / s.18C (former spouse or civil partner treated as dead); uncertainty; failure of a condition; disclaimer; the forfeiture rule (a killer cannot benefit, subject to relief under the Forfeiture Act 1982).

Interpretation

Start with the ordinary meaning of the words in their place in the will. The armchair principle lets the court sit in the testator's armchair and use facts the testator knew (who "my housekeeper" was; which cottage was "the Cornish cottage").

Administration of Justice Act 1982 s.21 allows extrinsic evidence, including evidence of the testator's intention, where the will is meaningless, the language is ambiguous on its face, or the language is ambiguous in the light of surrounding circumstances. Section 20 allows rectification for clerical error or a failure to understand instructions, on an application usually within six months of the grant (the court can extend). Do not plead rectification simply because the family dislike the result.

Exam traps. Marriage revokes; divorce edits. Destruction needs a physical act plus intention, and presence if someone else does the act. A later will without a revocation clause only impliedly revokes inconsistent gifts. Unattested post-execution ink does not change a will whose original words can still be read. Name no more than four proving executors. Renunciation comes too late after intermeddling.