Alterations, Initials and Interlineations

A document that has been amended by hand is more informative than a clean one, not less. The amendments record something that happened between drafting and signing, and reading them in order usually reconstructs the negotiation. The difficulty is confined to alterations that nobody is willing or able to explain.

The three questions an alteration raises

What did it say before. Sometimes visible under the strike, sometimes recoverable from a draft, and sometimes only from the counterpart held by the other side.

Who made the change. The handwriting, the ink and the initials point somewhere, and where they point nowhere the alteration is in serious trouble.

Was it agreed. Initials by every signer answer this; initials by one signer answer it for that signer only, which is a distinction people routinely miss.

When it was made. Before execution, at execution or afterward, and the third is a different matter entirely from the first two.

Whether it was material. An alteration to a party's name or an amount is material; correcting a typographical slip in a recital generally is not.

What initials actually record

Agreement by whoever wrote them. Nothing more than that. A change initialled by one party and not by the other is a change that one party agreed to, and the document is silent about what anybody else thought of it.

Presence at the moment of change. Which is the genuinely useful part of the practice: initials place a named person with the document at the point the alteration was made, and that is hard to establish any other way.

Not the date of the change. Initials are almost never dated, so they fix the actor and not the moment, which is why an undated entry reappears as a problem here.

Not approval of the whole document. A signer who initials one amended clause has not thereby re-approved everything else in the instrument, although that is very often how the exercise is presented afterward.

Nothing at all, if unattributable. A pair of initials that no party recognizes and no witness can place is a mark on a page and nothing more, and it makes the alteration beside it worse rather than better.

Reading the sequence of changes

Ink over fold, or fold over ink. A line written across a crease and a crease made across a line look different, and the difference establishes what happened first.

Impressions from the sheet above. Writing presses through, and an impression on a following page shows that the entry was made while the pages were together.

Different pens, different sittings. A document carrying three distinct inks was worked on at least three times, whatever anybody now says about everything having been settled in a single meeting.

Alignment of typed insertions. A line typed on a different machine, or with different spacing, was added separately, which is easier to see than most people expect.

Overwriting and erasure. Both leave traces, and both are examinable, which is discussed in document examination.

When an alteration defeats an instrument

Material alteration by a party. A change to a material term, made after execution by a party who benefits and without the other's agreement, can void the instrument as against the innocent party.

Alteration by a stranger. Treated far more gently in most systems, on the sensible view that a party should not lose the benefit of a document merely because a person unconnected with it scribbled on the page.

Wills are particularly exposed. An alteration to a will made after execution generally has no effect at all unless the alteration was itself executed with the same formalities as the will, which almost nobody does at a kitchen table.

Negotiable instruments have their own rule. A material alteration discharges parties who did not assent, subject to protections for holders who took the instrument in good faith.

Most documents are not voided at all. For an ordinary commercial contract the usual consequence of an unexplained change is an evidential fight about that single term, rather than the destruction of the agreement as a whole.

Handling one in practice

Photograph it before anything else. In color, at a raking angle, and at high resolution, because the physical features do not survive an ordinary scan.

Get the counterpart. The other executed copy usually settles whether the alteration was made before the two copies separated, and a change present on one copy and absent from the other is decisive.

Ask the drafter. Lawyers' and agents' files frequently contain the marked-up version from which the change was carried across, together with the correspondence in which somebody asked for it.

Do not clean it up. Retyping an amended document to produce a tidy version destroys the evidence and creates a second document that says something different.

Explain it in the statement. An alteration described plainly and accounted for is a detail; the same alteration discovered by the other side is a problem, as with any document that contradicts the record.

Amendments on the face of a document are, on the whole, a good sign. They show that somebody read the thing, objected to part of it, and had the objection accepted. A document with no marks on it may simply be a document nobody read.

The exception is the unattributable change. An insertion in an unfamiliar hand, initialled by nobody, in a term that matters, is the single most damaging feature a document can carry, because it puts the person producing the document in the position of explaining something they cannot explain.

Because so much of the analysis is physical, the original matters here more than almost anywhere else. Ink sequence, impressions, folds and erasures do not reproduce, and a case that depends on them depends on somebody having kept the paper.

Where an amendment is being made now, the discipline is trivial and worth insisting on: strike, insert, initial by every party, and date the initials. Ten seconds at the table removes an argument that can otherwise last years.