Formalities, mistake and construction in the law of wills

• Main Author: Maxton, J. K.
• Language: en
• Published: University of Canterbury. Law 2013
• Online Access: http://hdl.handle.net/10092/8245

This thesis examines three aspects of the law of succession which, it is contended, are ripe for reform. Modern testamentary practice is governed by s.9 of the Wills Act 1837. That section stipulates the formalities which must be complied with in order to execute a valid will. These apparently simple requirements have produced complex case law due, in large part, to the courts' rigorous insistence on any defect in the formalities automatically voiding a will. An examination of the case law coupled with a study of the underlying rationale for the existence of the formalities is undertaken. Using that background it is suggested that a relaxation of the formalities in cases where the rationale for their existence still obtains will better serve the interests of "a nicer justice" than the present position does. A comparison of six jurisdictions which have instigated innovations in this area of law concludes the first chapter. The second aspect of the law of succession which is discussed concerns mistakes: how mistakes can occur and how they may be remedied. A categorisation of the common law is attempted: a task beset by difficulties because of sporadic judicial eagerness to overcome legislative inaction. The result comprises many fine distinctions in the interests of trying to "do justice" allied with dissatisfaction on the part of the judiciary on the complicated nature of the law and their limited powers under it. A case for the extension of those powers is made in third chapter where, after examining the jurisdiction of the courts, it is argued first, that rectification ought to be available as a remedy in the law of wills, and, secondly, that the rules regarding the admission of extrinsic evidence ought to be relaxed.