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Making changes to your Will on the back of an envelope is never a good idea!

Written by: Rebecca Greig
Category: Private Client
18 March 2022

Making changes to your Will

When our clients wish to make changes to their Wills, they usually contact us. We will arrange a meeting, discuss the changes, and make recommendations about options. What we will not recommend is making changes to you Will on the back of an envelope!

Why are handwritten changes a problem?

Perhaps one of the most recent examples of how apparent handwritten changes can cause problems is a case heard in the Commissary Court in Edinburgh (Cummins and Tierney [2021] SC EDIN 60). Mrs Cummins and Mrs Tierney were appointed executors to the Will of the late Miss Mary Downey (otherwise known as Maureen). Miss Downey was born in Ireland in 1926 but came to Scotland as a young adult. She qualified as a teacher and taught in Glasgow for many years. In 2017, Miss Downey moved back to Cashel, Co. Tipperary, Ireland and stayed in Acorn Lodge Nursing Home there. She died at Cashel on 14 September 2019.

Miss Downey made her Will in December 2012. This was prepared and witnessed by a Solicitor in Glasgow. The Will was valid and probative – that means it can be relied on in its own right without having to be supported by other evidence.

After she died, a copy of her Will was found in an envelope in her possessions. This seemed to be the original envelope sent to her containing a copy of her 2012 Will. On the back of the envelope, she had written a date “January 2015”, some other words and had then signed it. It was argued by the executors that the words altered two of the bequests in the original Will. The effect of those alterations would be to disinherit her nephew, Partick Downey Jnr and his father, Miss Downey’s brother Patrick Downey Snr (who was deceased at the time of the court action).

What was written on the envelope?

The envelope was an A4 envelope, and it contained a photocopy of the 2012 Will. On the front of the envelope Miss Downey had written the date of her Will – “12/12/12” and circled it. To the left of this date is the letter “W” which appears in a small quare box. Below the window on the front of the envelope she had then written a note which read “*** Back of this envelope”.

On the back of the envelope there were again three asterisks “***” and after that, two numbers: “6.16 + 6.18” and these are circled. Then there is a date – “January 2015” which is positioned to the right and underneath there is the word “Alterations” which was underlined.

To the right-hand side of this, the words “brother Pat’s 4” are circled and after this, the words “to STEPHEN (nephew)” are found and just underneath this are the words “nephew Patrick’s 4” are circled and followed by the words “to PAUL (nephew)”.

Finally, below these words, Miss Downey’s signature has been applied with the word “Signed” to the left of it and “January 2015” is repeated to the right of the signature.

What is the effect of the writing on the envelope?

This goes to the crux of the issue and one of the reasons for the application to the court. Even the executors who applied to the court acknowledged that it is “not clear”, on the face of it, that the words written on the envelope contain testamentary intent by Miss Downey.

For informal writing to have effect, there must be testamentary intent. That is that the person intended the document or writing to have testamentary effect which would mean that the terms of the Will would be changed.

It should be said that some Wills contain provisions allowing informal writings to be taken into account. Miss Downey’s Will did not contain such a clause. However, this did not mean that her informal writings could not be taken into account.

It was accepted that the words were written by Miss Downey and subscribed by her and, because of that met the requirements of the Requirements of Writing (Scotland) Act 1995. But the question to be resolved was whether the words expressed testamentary intent.

There were some inconsistencies in the numbering referred to. For instance, the clause in the Will in relation to her brother (which she refers to as “6.16”) is actually Clause 6.1.6 in the Will and the clause relating to her nephew, Patrick Downey Jnr is described as “6.18” when the actual clause in the Will relating to Patrick Downey Jnr is 6.1.7.

However, there was no clear evidence of testamentary intent contained within the words written on the envelope.

What was the final outcome of the case?

The sheriff says, in his conclusion “The intention of the writer of the Informal Writing is not clear from the words used. There is, to use contractual language, no operative clause, which clearly and succinctly informs the reader what the writer’s intention is and what is to be done (unless one assumes testamentary intent when it is obvious what the Informal Writing means). Put another way, testamentary language is not used.”

The sheriff then goes on to quote Lord President Inglis in the case of Colvin v Hutchison (1885) 12R. 947 who said, “I do not think it matters how inelegant, or how imperfect grammatically a testator's language may be, if it can fairly be construed to mean that he bequeaths certain sums of money to certain individuals, sufficiently designed in the writing itself.”

The sheriff then said “There’s the rub, to my mind. The evidence from what’s written, where it’s written and where it’s found individually and collectively fail to persuade me on a balance of probabilities that the deceased intended to alter her 2012 will which is a clear and probative testamentary writing.”

All of this resulted in the sheriff refusing the executors’ application to alter the Will and to give any meaning to the words written on the envelope.

This article contains a summary of the judgement in this case which can be read, in full, by clicking here.

Contact our Wills Lawyers

We cannot stress enough that it is essential to seek legal advice when dealing with your Will and personal affairs. If you would like help to make changes to your Will or, if you have not yet made a Will, please get in touch with us now.

Written by:

Rebecca Greig

Associate

We understand the importance of getting to know you and our legal services will be individually tailored to meet your needs and resources. We are happy to act for both individuals and businesses.