Rectification of Mistakes in theInducement of Testamentary Dispositions

P.M. WoodB.Ec., LL.B. (A.N.U.), LL.M. (Col.), Barrister at Law, New South Wales.

Introduction

Mistake, as far as it can be distinguished from other legal concepts, con-sists in an erroneous belief as to the existence of a state of facts or in theunconscious ignorance of some fact, which is not the product of the in-tentional intervention of another and which results in the execution of alegal act that would not have been undertaken had there been no such erro-neous belief or ignorance.! In the law of wills, mistake has assumed acharacter alien to that which has been traditionally ascribed to it in so faras the analysis of it, and its effects, has not proceeded on the basis that aninstrument executed under mistake is valid, notwithstanding the error,subject to rescission or rectification when challenged.2 Rather, the courtshave worked from the fIrst principles of testimony disposition and treatedquestions of mistake as not requiring the application of a discrete andcomprehending principle of law, but merely as involving aberrations, to berectified in an ad hoc fashion only if this could be done within the existingstructure of the law.

No statutory consideration has been given to the establishment of acomprehensive remedial jurisdiction to deal with testamentary errors, norhas an attempt been made, through the cases, to formulate workableguidelines for the realisation of dispositive intentions which oterhwisewould be defeated by mistake. The result has been a jurisdiction premisedon ill-eonceived rules fonnulated to work some justice in cases of patentmistake where the governing precepts of succession law so allowed; andwhich is severely restricted in ambit and partial in its operation3•

An analysis of the existing jurisdiction of the Court of Probate to rect-ify mistakes of a testator reveals that the rudiments of an integrated equit-able jurisdiction can be found in principle and in the case law: whichheretofore has uniformly been denied by both the courts and the com-mentators.4 Although the present law contained doctrines which "overtlyand apparently without remorse trample upon the reasonable expectationsof rational testators"s such powers as are to be found to exist and therationale under which they operate provide a sound basis for a limitedstatutory intervention to refine and perfect the remedial jurisdiction.

Where a testator makes a mistake in his will there are two occasions forcorrecting it. The fIrst is in the probate process and the second is after pro-

1 Page on Wills (Bowe-Parker Revision 1969) Vol. 1 S.13.2.2 Cf. Meagher, Gummow and Lehane, Equity: doctrines & remedies (2nd ed. 1984) Chs.

14,26; Lindgren, Carter& Harland, Contract Law in Australia (1986) Ch.12.3 Cf. U.K. Law Refonn Committee, Nineteenth Report: Interpretation o/Wills Cmnd

5301 (1973) para. 9.4 See infra nne 118, 120.5 Lee, "Correcting Testators' Mistakes: The Probate Jurisdiction." (1969) 33 Convey.

& Prop. Lawy. 322,334.

Rectification ofMistakes 197

bate of the will, on interpretation. The jurisdiction of the interpretationcomt is strictly limited6, for it "is bound to assume that all documents ad-mitted to probate are testamentary documents"? There is power in thecourt as part of the process of construing the will, to read it as if certainwords had been omitted, changed or inserted. But this will only be done,however, where it can be shown from the language of the will itself thatthe words appearing do not represent the testator's intentions and alsowhat omission, substitution or insertion is required to carry out those in-tentions8:

The only sense in which it is true to say that a court of construction may correctmistakes in a will is that that court may give effect to inferences obtained fromthe will as a whole (with the assistance of evidence of surrounding circumstan-ces if ambiguity in the will justifies resort to such evidence) ... notwithstand-ing that to do so involves an alteration of the words used9•

Since the relation between words and objects involves two steps, twodifferent kinds of mistake may occur10• First, the thought may not ade-quately represent the object, which is reflected in succession law as amistake in the inducement to execute or revoke a will. This error is ex-trinsic to the document and its contents. Secondly, the word may notcorrectly express the thought, which is found in succession law as an erroras to the factum of the will or its contents. Ex hypothesi, these errors areintrinsic to the document and are taken to include errors as to the legaleffect of language used. The distinction is important because the usualremedy for mistakes in inducement is to set aside the testamentary actll ;whereas rectification is the usual remedy sought in cases of mistake in ex-pression.12 This article is confined in its treatment to mistakes in induce-ment.

The Accepted Premises

Mistake in the inducement exists where a testator executes a document,the contents of which he is aware ofand approves, under a mistaken beliefas to facts extrinsic to that document, causing him to select that particulardispositive plan; whereas, had he been in possession of full knowledge ofthe facts, the dispositions would have been otherwise13• In this regard, thelaw draws no distinction between mistakes of fact and mistakes of law14•

6 Cf. Lee, Manual ofQueensland Succession law (1985) 34; and see Williams on Wills(4th ed. 1974) 30-31.

7 In re Barrance [1910] 2 Ch. 419,421 per Parker J.8 For a comprehensive discussion of the jurisdiction of the Construction Court see: Page

on Wills Ope cit. s.13.9; Jarman on Wills (8th 00. 1951) Vol. 1 Ch. XIX; Theobald, Wills(13th ed. 1971) Ch.54.

9 Tatham v. Huxtable (1950) 81 C.L.R. 639,651 per KittoJ.10 See Chafee, "The Disorderly Conduct of Words" (1941) 41 Col. L.R. 381,386; cf.

Rollison, Wills (1939) 132; Page on Wills op. cit. s.13.2.11 Cf. Psaltis v. Schultz (1948) 76 C.L.R. 547; Courturier v. Hastie (1852) 8 E~. 40;

Goldsbrough, Mort & Co. Limitedv. Carter (1914) 19 C.L.R. 429.12 See Lovelland Christmas Ltdv. Wall (1911) 104 L.T. 85; Hooker Town Developments

Pty Ltdv. Director o/War Service Homes (1973) 47 A.L.I.R. 320; Maralinga V. MajorEnterprises (1973) 1 A.L.R. 169.

13 Page on Wills,op.cit. s.13.11.14 Attorney General v. Lloyd (1747) 3 Atk. 551; In the Estate ofSoutherden [1925] P.l77;

Doe v. Evans (1839) 10 Ad. & E. 228.

198 PM.Wood

Whilst Roman law recognised that an error in motive always vitiated adisposition15; the generally accepted view in English jurisprudence hasbeen that, provided the testator has knowledge and approval of the con-tents of the will,16 a mistake inducing a certain dispositive scheme, is im-material, constituting no ground for avoidance or correction!7.

It is the submission of the writer that this view does not accuratelyrepresent the state of the law, for it can be shown that there is a fmnly es-tablished jurisdiction in the court to grant relief, in these circumstances, incases of mistaken revocation and moreover, within certain limitations, thecourts have released testators from dispositive provisions in a will the ex-ecution of which was induced by mistake.

Mistake in the Inducement to Dispose of Property

Where it can be shown that a testator was labouring under a mistake as toa salient fact18, extrinsic to the will, at the time of execution there is, incertain circumstances, a residuary equitable jurisdiction in a court of pro-bate to set aside the dispositions. There is a clear line of authority to theeffect that, where both the mistake and what the will would have been butfor the mistake appear on the face of the will, the court will set themistaken dispositions aside to reprieve the testator from the consequencesof his mistake.

In Doe v. Evans19, decided in 1839, the testatrix in her original willdevised lands to L., with remainder to L. 's sons and daughters. L. diedleaving one son and a posthumous daughter. The son having subsequentlydied, the testatrix, being ignorant of the birth of the daughter, made acodicil reciting the death of L. without leaving issue and devised the landsto H. It was held that the codicil was to be construed as a conditionalrevocation only: being inoperative as against L.'s daughter. A similarresult was reached in Barclay v. Maskelyne20 where a gift in a codicil wasvitiated by a mistake of the testator as to the identity of a beneficiary of agift under his will, which mistake appeared on the face of the instrument.The same principle was applied in Thomas v. Howel[21 in which a legacyin the will was considered to be conditional upon the truth ofa beliefof thetestator as to income capacity of part of his property. The final entrench-

15 Justinian, Institutes, Book II Title X; Dropsie, The Roman Law of Testaments andCodicils in the Event o/Death (1892) 115.

16 See Guardhousev. Blackburn (1866) L.R. 1 P. & D. 109; Re Carson's Estate 194 Pac.5; Gray, "Striking Words Out of a Will" (1912) 26 Harv. L.R. 212,223-224.

17 Attorney Generalv. Ward (1797) 3 Yes. 327; Attorney Generalv. Lloyd (1747) 3 Atk.551; Jones v. Grogan (1896) 25 S.E. 590; and see Gray, loco cit.; Page on Wills Ope cit.s.13.11; Warren, "Dependent Relative Revocation" (1920) 33 Harv. L.R. 337; Palmer,"Dependant Relative Revocation And Its Relation to Relief For Mistake" (1971) 69Mich. L.R. 989; Henderson "Mistake and Fraud in Wills - Part 1: A ComparativeAnalysis of Existing Law" (1967) 47 Boston l.Jni. L.R. 303; 79 Am.Jur.2d.ss. 415-417and cases cited therein; cf. Swinburne on Wills (6th ed. 1743) 395.

18 It would seem that mere errors offoresight orjudgment are non-remediable: Henderson,Ope cit. 404 and cases there cited.

19 (1839) 10 Ad. & E. 228; accord Gillispie v. Gillispie (1924) 96 N.J. Eq. 501.20 (1858) Johns 124; see also Allen v. Bewsey (1877) 7 Ch.D. 453.21 (1874) L.R. 18 Eq.Cas. 198 refusing to follow Attorney General v. Lloyd (1747) 3 Atk.

551.

Rectification ofMistakes 199

ment came in 1911, in In re Faris (No.2)22, where a bequest of stock in asecond will, grounded on the false assumption that the testator had notmade any other disposition of that property, was held to be conditional andcontingent upon the truth of the assumption.

Indeed, in the early English cases of Kennell v. Abbou23 and In theGoods ofMoresby24, the court granted relief where the will was executedunder a false assumption of fact which could only be proved dehors thewill; though it seems that post Wills Act 1837 courts have been reluctant tointervene on such facts as to do so, they say, would subvert the policy ofthat legislation25•

The real problem in this area is not one of lack of jurisdiction in thecourt to grant relief in the face of the Wills Act, but rather the court'sresponsibility for maintaining the integrity of formal testamentary dis-positions against the intolerable difficulties of admitting extrinsic evid-ence on the extent of the testator's mistake and what his will would havebeen if he was cognisant of all the facts26• Looking at the case law fromthis viewpoint, a number of conclusions can be generated. First, where themistake has prevented the execution of dispositions, it is clear that thecourt cannot reform the will by adding words which were not containedtherein at the time of execution27• Secondly, where the courts haveremedied mistakes, in cases in which the mistake and the alternative dis-position had there been no mistake appear in the will, the result is un-exceptionable from the point of view of violation of the Wills Act by parolevidence for the strictest requisites of certainty are satisfied28• Equitablepowers have been exercised by Probate Courts in these circumstances toset aside the mistaken dispositions. Thirdly, the very clear, though some-what illogical29 distinction in the cases between mistakes inducing dis-positions and mistakes inducing revocations is seen to have its basis in thevagaries of extrinsic evidence and the attributed deity of the Wills Act.

Whilst the jurisdiction of the court to rectify mistakes inducing tes-tators to execute particular dispositions is admittedly confined and narrow,it is shown to be firmly established and operates on general principles ofequity. The equitable nature and the scope of the jurisdiction in relation tomistakes in inducement is more fully explored in the following section.

'22 [1911] 1 I.R. 469; see alsoBransbyv. Haines (1833) 1 Lee 120; GWordv. Dyer (1852)2 R.I. 99.; Bowermanv. Burris 197 S.W. 490; Couch v. Eastman 27 W.Va. 796.

23 (1799) 4 Yes. Jr. 802; see also Wilkinson v. Joughin (1866) L.R. 2 Eq. 319; Brady v.Cubitt (1778) 1 Doug 31; Gordon v. Gordon (1816) 1 Mer. 141.

24 (1828) 1 Hagg. Ecc. 378.25 See supra n.17. It is accepted that the requirement that the mistake appear on the face

of the will may result in practically denying common law relief for mistake ininducement.

26 Henderson, Ope cit, 343; Page on Wills Ope cit. s.13.11; Palmer Ope cit. 989; Giffordv.Dyer supra n.24.

27 N.S.W.: Wills, Probate and Administration Act 1898. s. 7; Vic.: Wills Act, 1958 s.7;Anon. (1587) Godb. 131 pI. 149; Re Harris [1942] O.W.N. 429; Norton V. Jordan 360Ill. 419; Heiss v. Earle 134 N.J. Eq. 393.

28 Page Ope cit. s.13.11 describes this "exception" as "just and sound".29 See: Henderson, Ope cit. 313-314; cf. Wetherill, "Wills Executed Under Mistake of

Fact" (1899) 47 American lAw Register 425.

200

Mistake in the Inducement to Revoke

PM.Wood

General Principles

The briefest examination of the case law on purported revocation wherethe testator is mistaken as to a matter of fact or law in connection therewithdiscloses a more liberal judicial inclination to provide relief from themistake.3O It has been argued that a distinction exists between the revoca-tion and the execution of dispositions made under a mistake of fact on thebasis that the executed instrument is ambulatory during the life of the tes-tator and contingent upon his death, whereas revocations take effect 00-mediately31. The argument is that a testator is able at any time before deathto discover and correct his error inducing the execution ofdispositions butrevocations, albeit mistaken, take effect upon execution. This suggestionoverlooks the realities of mistake and the usual will-making process.Moreover, there can be no doubt that acts of revocation are testamentaryacts to the same degree as are acts of disposition:

While various presumptions and peculiarities of procedure may afford practicalbases for distinguishing between them, there is no less the logical necessity ofshowing that a particular instrument has not been revoked than there is ofshowing that it was formally executed in the rust instance.32

Whatever may be the theory, it is clear that the courts havedemonstrated a greater willingness to approximate to the intentions of atestator where he pUlports to revoke a will whilst under a mistake, bydeclaring the revocation to be dependent upon the existence of the situa-tion as believed by the testator, and accordingly hold that the will is notrevoked. The accepted33 textbook statement of the law is in Theobald34:

A revocation grounded on an assumption of fact which is false takes effect un-less, as a matter of construction, the truth of the fact is the condition of therevocation, or, in other words, lDlless the revocation is contingent upon the factbeing true.35

It is submitted, however, that instead of this fiction of conditionalrevocation, it is more realistic to treat the problem as one of mistake; hold-ing the revocation absolute or void in accordance with the putative in-tentions of the testator36•

30 See e.g. In the Estate ofBridgewater [1965] 1W.L.R.416;lntheGoodsofHopeBrown[1942] P. 136; In the Estate ofSoutherden [1925] P. 177.

31 Wetherill op. cit. 429; Hare & Wallace, Leading American Cases 517 s.2; and see IntM Will ofSteward [1964] V.R. 179.

32 Henderson, cp. ciL 314.33 In the Estate ofSoutherden [1925]P. 177, 182-183;lnreFeis [1964] Ch. 106, 112;ln

re Faris (No.2) [1911] 1 I.R. 469,472.34 Wills (13th ed. 1971) 1922.35 See also: Jarman on Wills op. cit. 164; Hastings & Weir, Probate Law and Practice

(2nd ed. 1948) 90, s. 17; Tristram & Coote's Probate Practice (25th ed. 1978) 679.36 See Atkinson, Handbook of the lAw of Wills (2nd ed. 1953) 387-388, s. 88; Evans,

, 'testamentary Revocation by Act to the Document and Dependent RelativeRevocation" (1935) 23 Ky LJ. 559; Palmer, "Dependent Relative Revocation and itsRelation to Relief for Mistake" (1971) 69 Mich. L.R. 989; Page on Wills op. cit.s.21.57-65; Cornish, "Dependent Relative Revocation" (1932) 5 South. Cal. L.R. 273,302; Note, (1925) 39 HaN. L.R. 405; Note, (1909) 22 HaN. L.R. 374, and see infran.48; see also Hutley, "Dependent Relative Revocation and Mistake" (1948) 22 A.LJ.259.

Rectification ofMistakes 201

Although traditionally the courts have worked a reconciliation of thestrict requirements of the Wills Act with the demands of justice and goodsense in granting relief from the effects of this type of mistake, through theinvocation of the doctrine of dependent relative revocation37, even incases in which the testator's intent in truth was neither "dependent" nor"relative"38, it will be demonstrated that, in the face of dicta to the contr-ary39, there is an inherent equitable jurisdiction in a Court of Probate togrant this relief for simple mistaken revocation where it will more closelyfashion the testamentary dispositions of the testator to his true intentions.

In the majority of cases analysed, the courts appear to proceed on thetheory that the presence of the mistake prevents the animus revocandi4o; asimplification which overlooks the distinction between complete and in-complete acts induced by mistake41 • Revocation, in these cases, is not inany sense conditional; the mistake simply operates as an inducement tothe complete act of revocation and does not prevent it coming into being42.Yet equity might well relieve against such a revocation where to do sowould more nearly carry out the intentions of the testator43, for there canbe no valid practical objection to the Probate Court setting aside a revoca-tion in this manner provided that the equitable basis of its action isrecognised44• The failure to draw the distinction and make explicit thebasis of the action has resulted in many decisions which seem to do viol-ence to the intentions of the testator45• Probate Courts must face the ques-tion squarely, recognising that a revocation induced by mistake is notreally conditional and either refuse to do equitable work or disregard the

37 ' 'I think the correct approach is to ascertain the intention of the testator and then invokethe doctrine as a means of giving effect to it", Re Mills, deceased (No.2) (1968) 88W.N. (pt.l) (N.S.W.) 573, 578 per Helsham J.; see also In re Faris (No.2) [1911] 1I.R. 469; IntM Goods ofde Bode (1847) 5 Notes of Cases 189; Winsorv. Pratt (1821)5 Moore C.P. 484; In tM Goods ofApplebee (1828) 1 Hagg. Ecc. 143; Palmer op. cit.993, 998; Note, (1926) 74 Uni. of Penn. L.R. 615.

38 E.g. In tM Goodso/Hors/ord(1874) L.R. 3 P.O. 211; In the Goods ofMcCabe (1873)L.R. 3 P.D. 94; and see Cornish, op. cit. 375; Newark, "Dependent RelativeRevocation" (1955) 71 L.Q.R. 374; Bregy Pennsylvania Intestate, Wills and EstatesAct of 1947 2369: "The heart of the problem is how far the court will go in relievingthe testator from the consequences of his intentional and otherwise ~ffectiveact".

39 See infra 0.118; and Re Mills (1968) 88 W.N. (Pt.2) (N.S.W.) 74, 81; and see alsoPalmer,op. cit. 991; Grayop. cit. 212,214.

40 E.g. Lockev.James (1843) 11 M. & W. 901; Clarksonv. Clarkson (1862) 2Sw. & Tr.497; In the Goods o/Irvine [1919] 2I.R. 485; Beardsley v. Lacey (1897) 78 L.T. 25.

41 Cornish op. cit; Warren, "Dependent Relative Revocation" (1920) 33 Harv. L.R. 337,342: "Just as title passes to the subject matter of a sale induced by fraud or mistake ... so here a legal transaction has taken place and can only be affected through theequitable jurisdiction of the court"; Note, (1909) 22 Harv. L.R. 374.

42 Cf. Edmunds v. MerchiJnt's Despatch Co. 135 Mass. 283.43 Campbellv. French (1797) 3 Ves. Jr. 321; Onionsv. Tyrer (1716) 2 Vern. 741.44 Cf. the commercial law position where the actions of detinue (see Hollins v. Fowler

(1875) L.R. 7 H.L 757) and trover (see Fouldes v. Willoughby (1841) 8 M. & W. 540)were based in equity.

45 E.g. In tM Goods o/Middleton (1864) 3 Sw. & Tr. 583; Powell v. Powell (1866) L.R.1 P. & D. 209; Re Mills, Deceased. (1968) 88 W.N. (pt.2) (N.S.W.) 74,87 per JacobsI.A.: "That doctrine [dependent relative revocation] itself is a creation of the courtswhich, however one may look at it, cannot really be reconciled with the specificlanguage of the Act It has at times operated to defeat rather than promote the primaryintention of testators"; and see: Newark, op. cit. 386.

202 PM.Wood

revocation and revive the fonner will only where that result is clearly theintent of the testator46.

Case Law

The cases illustrating the jurisdiction and approach of the courts can beconveniently collected as follows:(1) Where the testator revokes a will believing that by so doing a prev-

ious testament will be revived - involving a mistake of law47•(2) Where the testator revokes a will because of a mistake of fact.(3) Where the testator revokes a will believing that he was made a valid

alternate disposition of his property or believing the will to be invalidor no longer needed - involving a mistake of law.

The fons et origo, in the frrst class, is the case ofPowell v. Powelf48, in1866, where the testator destroyed his will with the intention of setting upa fonner will by that act of revocation. Sir J.P. Wilde (as he then was),overruling Dickinson v. Swatman49, held the testator's animus revocandito have only a "conditional existence"SO and as he laboured under amistaken belief as to the fulfilment of that condition the revocation wasnot effective. The case provides a classic instance of the conditional intentanalysis stultifying the testator's intentions: for the very reason that thetestator destroyed his later will was to disinherit a nephew who took there-under, but the blind application of the dependent revocation doctrinefrustrated this intention51 • Had the court perceived its jurisdiction as beingpurely equitable this anomalous result would not have followed52• Powellv. Powe1l53 was applied on similar facts in Cossey v. Cossey54 where, themistaken belief that an earlier will would be revived by the revocation ofthe later will vitiated the revocation; the result going some way to con-summating the testator's patent intentions55 • The same solution wasreached in the comparatively modern case of In The Estate ofBridgewa-te,s6, firmly establishing the power of a court of probate to set aside a

46 See In re Jones [1976] 2 W.L.R. 457; In the Estate o/Zimmer (1924) 40 T.L.R. 502;Richardsonv. Barry (1830) 3 Hagg.Ecc. 249; andChambersv. Chambers542S.W.2d.901 where the court held the doctrine of dependent relative revocation inapplicable asthe testator's intentions best followed by allowing the property to pass on intestacy; andsee Jarman on Wills Ope cit. 166.

47 N.S.W.: Wills, Probate and Administration Act 1898, s.19; Vic,: Wills Act 1958, s.20.48 (1866)L.R.l P.& D. 209; see also: Eckersleyv. Platt (1866) L.R. 1P.& D. 281; Welch

v. Gardiner (1887) 51 J.P. 760; Boltonand Hess v. Toronto General Trusts Corporation(1961)29D.L.R. (2d) 173;ReFormaniuk(1964)42D.L.R. (2d)78;Jamesv.Shrimpton(1876) 1 P.D. 431; Homerton v. Hewett (1872) 25 L.T.R. 854.

49 (1860) 30 L.J. 84.50 (1866) LR. 1 P. & D. 209, 212.51 See: Roberts, "Dependent Relative Revocation of Wills" (1901)49 Uni. ofPenn. L.R.

18,31.52 Cf. cases cited supra n. 48.53 (1866) L.R. 1 P. & D. 209.54 (1900) 82 LT. 203; cf./n the Goods ofErnma Keal Weston (1869) L.R. 1 P. & D. 633;

In the Goods ofGentry (1873) L.R. 3 P. & D. 80.55 The beneficiary taking a limited interest instead of an absolute title.56 [1965] 1 W.L.R.416; see also: Re Ott (1972)24 D.L.R. (3d) 517;Re Lindrea, deceased

[1953] V.LR. 168.

Rectification ofMistakes 203

revocation based on a mistake of law of this kind. The law in the UnitedStates also recognises this jurisdictionS?.

The second category is well illustrated by the seminal case ofCampbellv. FrencJt58 in which the testator revoked gifts to certain legatees "theybeing all dead" , whereas in truth they were alive. Lord Loughborough setthe revocation aside for mistake: "It appears to me, there is no revocation,the cause being false ...59. Two later cases, Doe v. Evanl'° and Barclay v.Maskelyne61 , applied the principle on similar facts, where the erroneousbelief of fact was recited in the revoking document, to effectuate the in-tentions of the testator. Although the courts have spoken in terms of con-ditional revocation, it is clear that these cases are truty ones of mistake, forin each, the testator expressly revokes "because" he believes a certainsituation to exist, not "if" that situation exists.

A number of cases62 have suggested that a mistake of fact inducing achange of testamentary disposition cannot be proved dehors the will,which imposes a severe limitation on the court's ability to grant relief inthese cases63• However, there is authority64 to the effect that a revocationfounded on a mistaken assumption of fact not expressed on the face of therevoking instrument will be set aside. This appears to be the better view,for in this situation65 the statute is not really being ignored by importinginto a formal revocation a condition proved by parol evidence but rather,the formalised act of revocation simply does not result in a valid revoca-tion: a construction unobjectionable from the point of view of the WillsAcf!i6.

In two final cases requiring mention, it was held, as a matter of con-struction, that revocations were absolute although premised on erroneousassumptions of fact. In Attorney General v. WartJ67, the revocation was

57 79 Am. Jur. 2d. s.569; In re Forbes' Will (1893) 24 N.Y.S. 841; In re Callaghan's Estate(1947) 29 N.W. 2d 352; Appeal ofStrong 63A. 1089; McCaffrey's Estate (1940) 174Misc. 162.

58 (1797) 3 Yes. Jun. 321; see also: In re Wright Estate [1937] 3 W.W.R. 452;Newtonv.Newlon (1861) 12Ir. Ch.118;ln The Goods ofW. Lewis (1850) 14 PI. Jur. 514; Thomasv. Howell (1874) L.R. 18 Eq.Cas. 198; Moseley v. Goodman (1924) 96 N.J. Eq. 501;Dunham v. Averill 45 Conn. 61; of Attorney General v. Lloyd (1747) 3 Atk. 551; andsee: Hulley, "Dependent Relative Revocation and Mistake" (1948) 22 A.LJ. 259,260.

59 (1797) 3 Yes. Jun. 321,332.60 (1839) 10 Ad. & E. 228; see also In the Goods ofRichard Morseby (1828) 1 Hagg. Ecc.

378.61 (1858) Johns 124; see also Allen v. Bewsey (1877) 7 Ch.D. 453.62 Burtonshaw v. Gilbert (1774) 1 Cowp. 49; Major v. Williams (1843) 3 Curt. 432;

Bransby v. Haines (1752) 1 Lee 120; Giffordv. Dyer (1852) 2 R.I. 99.63 A further limitation is imposed in the United States that the testator is bound by a mistake

as to facts peculiarly within his knowledge (Hayes v. Hayes (1871) 21 N.J. Eq. 265;Giddings v. Giddings (1895) 65 Conn. 149; MendinaII,s Appeal (1889) 124 P. 387).But this does not appear to be the law in the United Kingdom (In re Taylor's Estate(1882) 22 Ch.D. 495).

64 Perrott v. Perrott (1811) 14 East. 423; In re Jones [1976] 2 W.L.R. 457; In the Goodso/Moresby (1828) 1 Hagg.Ecc. 378; In re Kerckhoff s Estate (1942) 125 P. (2d) 284.

65 Cf. the cases of mistakenly induced disposition.66 "Parol testimony of the testator's intent is admissible, for one is not constnring a

writing, not altering the meaning of a document, but setting in its proper light an act"Warren, ope ciL 339; see also: In The Will ofPage (1969) 90 W.N. (Pt. 1) (N.S.W.) 6,9-14; Newark, ope ciL 376: 3 Wigmore on Evidence (3rd ed. 1940) s.1782.

67 (1797) 3 Yes. Jun. 327; see also Skipwith v. Cabell (1810) 19 Gratl. (Va.) 758; In reProvost's Estate (1919) 264 Pa.27.

204 PM.Wood

held sufficient because it was founded only on "doubts" of the testatrixwhether the fonner legatee were still living and "well provided for". Butin In re Churchill,68 the testator, having expressed the revocation to bebased on what proved to be erroneous facts, was held to it, defeating hisplain intentions. Neville J. regarded the case as involving merely an im-perfect gift, reluctantly not applying69 Campbell v. French70 and Doe v.Evans71 of which he said: '

It seems to me that those cases have gone a considerable way towards makinga will for a testator in order to carry out what was extremely probably his inten-tion?2

It would seem a safe proposition that the authorities are agreed that atestator, having deceived himself as to a state of facts, will be relievedfrom a revocation executed under that deception where to do so will moreclosely approximate his intentions.

The final class of case involves revocation under the belief that the in-strument is invalid, or of no use, or that a valid subsequent instrument hasbeen made. The cases are more difficult of analysis, but involve the sameprinciples or relief.

Where a testator destroys a testamentary instrument in the belief, albeitmistaken, that the instrument is invalid and ineffective, the correct ap-proach is to deny the revocation on the basis of absence of animusrevocandi; fOi he clearly had no intention to revoke a valid wil173• As LordPenzance put it in Giles and Clark v. Warren74. "He does not revoke it ifhe does not treat it as being valid at the time when he sets about to destroyit". This proposition is supported in In the Goods ofThornton75, Pe"ott v.Perrott76, Swanson Estate77 and Beardsley v. Lacey78. However, the mat-ter was taken much further in the recent English case of In re Carey79,where the testator destroyed his will on the assumption that he no longerhad any nee

Rectification ofMistakes 205

be ineffective for some legal reason. The cases begin in 1716, with Onionsv. Tyre"sl where the Lord Chancellor (Cowper) treated the destruction,semble, as a good revocation at law, yet it would be relieved against, inequity, under the head of mistake. The case has variously been explainedas one in which the mistake prevented the formation of the animusrevocandi82, as one of conditional revocation83, and as one of no revoca-tion at all in the sense that the testator intended to recall or destroy thegift84. Whatever the correct basis may be, it remains that the testator wasrelieved of the consequences of his formal act of revocation. The principlewas reasserted through the nineteenth century in Clarkson v. Clar-kston8S Beardsley v. Lacey86, In the Goods of James87 and Windsor v.Pratt88, all decided on substantially similar facts; and has been applied somany times this century89 that its validity cannot now be doubted.

Indeed, it has been the subject of extension in In the Estate ofSoutherden90 where the testator destroyed his will in the mistaken beliefthat his widow would take everything under the intestacy laws. The Courtof Appeal set aside the revocation under the doctrine ofdependent relativerevocation, applying the conditional intent analysis: "To put a will into thefire is simply only destroying a piece ofpaper"91 Southerden was cited inIn re Feis,92 where the testator revoked a gift of his German estate believ-ing he had made a valid separate arrangement in respect of it. As it turnedout, the power of attorney he had left was expressed to continue postmortem which was impossible under German law. Cross J., however,refused relief, concluding as a matter of construction, that the revocationwas not conditional.

The last line of cases falling within this group have in common a validtestamentary instrument, followed by a revocation (by either act or instru-ment), relating to specific devises or bequests, and then substitution ofnew gifts which fail for some legal reason. One of the earliest cases was

81 (1716)2 Vern. 741; 1P.Wms. 343; see also: Jekyllv. Jekyll (1753) 1Lee 419; Limberyv. Mason and Hyde (1731) 2Comyns. 451.

82 Durberv. BUM (1926) 134 L.T.R. 669; West v. West [1921] 21.R. 34; In the Goods ofMiddleton (1864) 3 Sw. & Tr. 583.

83 Pe"ottv. Perrott (1811) 14 East 423; Dixon v. The Solicitor to the Treasury [1905] P.42; see also In the estate ofBromJuun [1951] 2 T.L.R. 1149; In the Goods ofWoodward(1871) L.R. 2 P. & D. 206; In the Goods ofWhite (1879) 3 L.R. Ir. 413.

84 In the Goods oflrvine [1919] 21.R. 485; In re Allen (1962) 106 Sol. Jo. 115; Newark,Ope ciL 379; and see Eccleston v. Speake (1688) Carth. 79.

85 (1862) 2 Sw. & Tr. 497.86 (1897) 78 L.T. 25.87 (1869) 19 LT. 610.88 (1821) 5Moore C.P. 484; cf.ln the Goods ofWeston (1869) 1P. & D. 633; In the Goods

ofGentry (1873) 3 P. & D. SO.89 E.g. Durberv. Bunn (1926) 134 L.T.R. 669; West v. West [1921] 2I.R. 34; In the Goods

ofHope Brown [1942] P. 136; In the Estate oflrvin (1908) 25 T.L.R. 41; In the EstateofDavies [1951] 1All. E.R. 920; In the Estate o/Botting [1951] 67 Part 2 T.L.R. 1089;Lippe v.Hedderwick(1922) 31 C.L.R. 148, 155 perStarkeJ.; cf./nRe Surridge (1970)114 Part 1 So1.Jo.208.

90 [1925] P.177; noted 39 HaIV. L.R. 405; see also: 79 Am.Jur. 5.569; Flandersv. White18 P. (2d) 823.

91 [1925] P.I77, 185 per Atkin L.J.92 [1964] Ch. 106, 112; and seeRe Plunkett [1964] I.R. 259.

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Ex parte The Earl of Ilchester,93 in which Sir William Grant MR. ac-cepted the doctrine of implied condition based on mistake:

The rule of the Civil Law, is Tunc prius testam£nlum rumpitur, cum posteriusperfectum est. In Limbery v. Mason (Com. 451) that is laid down as the rules ofour law.94

In the same year Short v. Smith95 was decided, where it was held thatthe erasure of the name of a trustee in the will did not constitute an effec-tive revocation of the appointment, for it was conditional upon the validinsertion of the new trustee and the substitution was not properly ex-ecuted. The same result was reached in a number of nineteenth centurycases building upon this precedent: Kirke v. Kirke96, Brooke v. Kent97 ,Soar v. Dolman98,Locke v. James99, In the Goods ofMcCabe1OO, althoughit is clear, in each case, that the court was merely approximating to thetestator's intentions; being shackled by the Wills Act formalities101 fromgiving effect to the patent intentions of the decedent102•

The opposite conclusion was arrived at in Tupper v. Tupper103 where acodicil revoking previous bequests left the property of those bequests to afund which was under a legal incapacity to take. Page-Wood V.C. held therevocation to be absolute104. In 1868, Tupper v. Tupper105 was followed inQuinn v. Butler106, in which the substituted gift was void as the testator didnot have an exclusive power of appointment. The revocation, again, washeld to be absolute. The results in these cases are consistent, it is sub-mitted, with the principle of equitable relief for revocation based onmistake; as by holding the revocation to be effective, the court was able,in each case, to more closely approximate the testator's true intentionsthan if the original gifts had been given effect. The jurisdiction is the same

93 (1803) 7 Yes. Jun. 348.94 Id. 380; the quotation continues: "There is no doubt, but the testator by any writing ..

. or by any cancelling ... designed merely to disannul the fonner will, might haverevoked it without more: but he designs to do it by a new will; and unless such writingbe effectual to operate as a will, it shall not amount to a revocation. (Com. 454)".

95 (1803) 4 East 418.96 (1828) 4 Russ. 435, citing Hyde v. Mason 8 Vin.Abr.Devise, (R) 2, pI. 17, 139.97 (1840) 3 Moore P.C. 334; see also In re Horsford (1874) L.R. 3 P.D. 211; Sutton v.

Sutton (1778) 2 Cowp. 812; In The Goods ofNelson (1872) 6 Ir.R.Eq. 569; Dancer v.Crabb (1873) 3 P.O. 98.

98 (1842) 3 Curt. 121.99 (1843) 11 M. & W. 901.100 (1873) 3 P.o. 94; see also: In the Goods ofHarris (1860) 1Sw. & Tr. 536; In the Goods

ofPa" (1859) 29 L.J. (P) 70; the position in the United States is the same: In re Dixon(1867) 55 Pa. 424; In re Thomas' Will (1899) 79 N.W. 194; Schneiderv. Harrington(1947) 71 N.E. (2d) 242; In re Knapen's Will 53 A. 1003; In the Will ofMarvin 179N.W.508.

101 Writing, signature, and attestation; see supra n.29.102 Cf.Re Mills, DeceasedNo. 2 (1968) 88 W.N. (Pt.l) (N.S.W.) 573; In re TaitDeceased

[1957] V.R.405;/nreRich,Deceased[1947] S.A.S.R. 98;InreKinman[1948]Q.W.N.42.

103 (1855) 1 K. & 1. 665, citing French's Case, RoUes Abr., Dev (0) 4 (c.l587); see also:Price v. Maxwell (1857) 28 Pa. 23.

104 Cf.In the Goods ofEvans 1952 (unreported) but see Newark, op. cit. 386; Roper v.Radcliffe (1714) 9 Mod. 167, 181.

105 (1855) 1 K. & J. 665.106 (1868) L.R. 6 Eq. 225.

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as that exercised in cases such as In re Jones107 where the court moreopenly weighed the comparative advantages of allowing the property topass as on intestacy against those attaching to it passing under the originaldisposition.

The cases this century support this rationalisation and serve to illustrateits application108• In In re Bernard's Settlement,l09 the testatrix sought, bycodicil, to increase the security of a gift to one of her daughters by meansof protective trusts which infringed the rule against perpetuities. Therevocation was set aside and the daughter took an absolute interest underthe will. In the goods of Hope BrownllO a holograph will purported torevoke prior testamentary dispositions. However, being incomplete inmaterial particulars, it was held, under the doctrine of dependent relativerevocation, not to revoke the prior will disposing of all the testator's pro-perty. Langton J. saying at 138:

The duty ofthe courtis, ifit bepossible, to colleet and give effect to themanifestintentions of the testator. In doing so, the court is, of course, restrained fromany attempt to make for the testator a new will which he has not made forhimself. The court is only entitled to give effect to what appear to be clearintentions and to admit to probate such documents as will give effect to thoseintentions.Ill

Finally, in In re Murray1l2, the testator, by his second will, expresslyrevoked certain clauses of the previous will, but the gifts substituted failedfor uncertainty. Hannan J. refused to apply the doctrine of dependent rela-tive revocation, holding the revocation absolute, for it was only a matter ofspeculation whether the revocation was dependent upon the validity of thelater provisions.

The line is clearly established that where a testator is induced to revoketestamentary dispositions, by a mistaken beliefas to law or fact, there is anequitable jurisdiction in a court of probate to set aside the revocation onthe ground of mistake; where to do so will go some way to consummatingthe testator's manifest intentions.

Conclusions

Given the demonstration of a mistake by extrinsic evidence1l3 and given

107 [1976] 2 W.LR. 457; see supra n.48.108 The paragon is the American case of Swanson Estate (1950) 74 Pa.D.C. 358 in which

the testator strock out a gift in his will to B', the latter having died, inserting B" (theonly son of B') as beneficiary. The substitution was improperly executed. Therevocation was held to be conditional on a valid substitution so that the gift to B' stood,with the result that B' in fact took under s.14(8) Wills Act, Pennsylvania (anti-lapselegislation). The testator's intention was perfected.

109 [1916] 1 Ch. 552, following Duguidv. Fraser (1867) 31 Ch.D 449.110 [1942] P. 136; and see also In t~ Goods oflrvine [1919] 2 I.R. 485; In re Allen (1962)

106 Sol. Jo. 115; McKenzie v. Thomas [1968] N.Z.L.R. 493; In the Estate ofCocu[1960] 1 W.L.R. 491; In re Rich [1947] S.A.S.R. 98; Re Mills (1968) 88 W.N. (Pt. 1)(N.S.W.) 573.

111 See further In the Estate ofGreen (1962) 106 So1.Jo.1034; In the Goods of Weston(1869) 1 P. & D. 633.

112 [1956] 1 W.L.R. 605; see also: In the Goods of Mitcheson (1863) 32 L.J.P. 202;Eckersleyv. Platt (1866) 1 P. & D. 281.

113 Guardhouse v. Blackburn (1866) L.R. 1 P.D. 109, 114-115; Douglas-Menzies v.Umphelby [1908] A.C. 224; In the Will ofCullen (1907) 7 S.R. (N.S.W.) 29; In re Tarr(1946) 52 A.L.R. 457, Chichesterv. Quatrefages [1895] P.186.

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the unexceptional basis on which to ground a remedial jurisdiction, it canfairly be said that the established rules governing the exercise of thisjwisdiction, being "fmught with inconsistencies and unnecessary doctri-nal commandments"114, are inadequate and entirely unsatisfactory. Thegenerally accepted method of analysis in our law of an intended legal actinduced by mistake or containing a mistake is that the act is legally effec-tive: the mistake becomes important only in detennining whether it pro-vides a ground for rescinding the transaction or rectifying the error as thecase may bel15• In the law of wills, however, the courts have taken a dif-ferent approach to the question of mistake and produced a unique jurisdic-tion which is both restricted in its ambit and partial in its operation.

The books are full of statements denying a Court of Probate the powerin equity to refonn or rectify a willI16. "The written instrument is the finaland unalterable expression of the purpose of the testator" 117. However ithas been shown that some jurisdiction to rectify, albeit restricted, doesexist in the court; yet it must be admitted that its nature is exceptional.

Traditionally three reasons have been given for the refusal of the courtsto refonn wills118. First, beneficiaries under a will are usually119volunteers and it is a clear tenet of equity that it will not assist a volunteerto obtain legal rights120• The lack of consideration was thought by somewriters to be the most cogent objection to the application of the doctrine ofrectification121 • In Newburgh v. Newburgh122, however, Sir John Leach V-C. thought it no bar to the imposition of constructive trusteeship ondevisees to make the dispositions accord with the intentions of the testator,that the will was a voluntary settlement. Moreover, courts have alwaysbeen ready to rectify post-nuptial marriage settlements to make them con-fonn with the articles entered into before marriage123 and, indeed, there isauthority in which the court has granted rectification to a volunteer in asuit against the settlor's personal representatives after the settlor'sdeathl24• A fortiori there should be equity to rectify a will in favour of in-

114 Henderson, "Mistake and Fraud in Wills tt (1969) 47 Boston Uni. L.R. 303, 304.115 Meagher, Gummow & Lehane, Equity Doctrines andRemedies (2nd ed. 1984) Cbs. 14,

26; and cf. Palmer, uDependent Relative Revocation and its Relation to Mistake"(1971) 69 Mich.L.R. 989.

116 E.g.Osbornev.Smith(196O) IOSC.L.R.153, 163 perWindeyerJ.;/n re Bywmer (1881)18 Cb.17, 22; In the Goods ofLouis Schott [1901] P.190; / n re Bacharach's Will Trusts[1959] Ch.245, 249; In the Goods o/George Collins (1849) 7 Noles ofCases 278,279-280; Powell v. Mouchett (1821) 6 Madd. 216; Burke v. Central Trust Co. (1932)242 N.W. 760, 761; Sanderson v. Norcross (1922) 136 N.E. 170.

117 Polsey v. Newton (1908) 85 N.E. 574,575 per Rugg J.118 See Gray, Ope cit 213-214; Lee, op.cit. 328; Warren, uPraud, Undue Influence, and

Mistake in Wills" (1927) 41 Harv. L.R. 309,329.119 Cf. the case in which the testator has contracted to leave a certain benefit by his will:

e.g. Birmingham v. Renfrew (1937) 57 C.L.R. 666.120 In re Kay's Settlement [1939] Ch.329; In re Cook's Settlement [1965] Ch.902.121 Warren, loe.cit:; Gray, loco cit.122 (1820) 5 Madd. 364, 366.123 Boldv. Hutchinson (1855) 5 De G.M. & G. 558; Thompson V. Whitmore (1860) 1 J. &

H.268.124 Listerv. Hodgson (1861) L.R. 4 Eq. 30,34; Weirv. Van Tromp (1900) 16 T.L.R. 531;

Christie v. The Public Trustee (1921) 22 S.R. (N.S.W.) 148.

Rectification ofMistakes 209

tended beneficiaries as against voluntary legatees and devisees under thewill or as against takers as on intestacy.125.

The second objection taken to the power to reform is that it would ob-lige the court

first to ascertain by extrinsic evidence what the testator's intention was, andthen to expunge such words or phrases, as, being removed, will leave aresiduum, carrying out the intentions of the testator in the particular case,though different in form, and possibly in legal effect, from that which the test-ator or his advisers intended.l26

This, it was said, "would introduce a most alarming insecurity in thetestamentary dispositions of ... property" 127, for, if "the writing is to becontradicted by parol evidence the object of the law will be defeated andall certainty destroyed ... It would open such a door for perjury and con-fusion as would render wills of very little use"l28 and "would bring in aflood of litigation, disturbing the peace of families, and endangering thesecurity of title"129.

This line of argument contains two misconceptions. A jurisdiction torectify mistakes of a testator does not involve jettisoning the writtenformulation of testamentary intentions under a barrage of evidence fromthe "mercies of memory"130 Rather, the question is one of certainty and ofproof; so where there is a demonstrable error and the true intentions of thetestator are apparent, it is difficult to see why in principle reformationshould not be allowed.131 Moreover there is nothing in the provisions of theWills Act which denies the court such a jurisdiction. The idea originatesfrom the general concept of the intendment of the Act to achieve certaintyof the testator's intentions by requiring them to be in writing132 The courtshere, however, as elsewhere, have allowed the tool to become the master:"testamentary intentions which it is the purpose of the Act to preserve andclarify are surrendered to the fonnalities which seek to have that effect"133

Experience in other jurisdictions has shown that a system of successioncan operate effectively without always requiring compliance with formalit-ies.l34 The extrinsic evidence argument is no objection to a reform jurisdic-tion: it is a reflection of the tendancy to ovetproteetagainst tampering with the

125 Forrectification ofothervoluntary settlements see: Wrightv. Goff(1856) 22 Beav. 207;ReButlin'sSettleTMntTrusts [1976] 2 W.L.R. 547;Bonhotev.Henderson [1895] 1Ch.742; Van der Linde v. Van der Linde [1947] Ch. 306; Whiteside v. Whiteside [1950]Ch.65; Killick v. Gray (1882) 46 L.T. 583; Lackersteen v. Lackersteen (1860) 30 L.J.Ch.5; and see also: Pettit Equity and the Law o/Trusts (3rd ed. 1974) 485-486.

126 Harter v. Harter (1873) L.R. 3 P.O. lit 21 per Sir James Hannen.127 Fawcett v. Jones (1818-1821) 3 Phill.Ecc. 434, 489, per Sir John Nicholl.128 Iddings v.lddings7 Serg. & R.C. (pa) 111 per Tilghman C.J.129 Isaac v. Mills (1887) 5 N.Z.L.R. 122t 150 per Johnston J.; see also: Harrison v. Stone

(1829) 2 Hagg. Ecc. 537t 552; Newburgh v. Newburgh (1820) 5 Madd. 364, 365-366.130 Guardhouse v. Blackburn (1866) L.R. 1 P.O. 109t 117 per Sir J.P. Wilde.131 See Bates, "Wills-Another Case for Intention" (1976) 126N.L.J.I083t 1085.132 See Mellows, The Law ofSuccession (3rd ed. 1977) 70-72; Bates, loco cit.133 Batest ope cit. 1085.134 See South Australia, Wills Act (1975) s.12 (2), cf. Palk, lCInfonnal Wills: From Soldiers

to Citizens" (1976) 5 Adel.L.R. 382; Washington, Washington Revised Codes.I1.02.09O. 1974t see Graafstrat TCNo More Probate? Washington Revised Codes.I1.02.090. 1974" (1976) 51 Wash. LR. 451; and see also the pre-Wills Act 1837jurisdiction in the United Kingdom: Lamkin v. Babb (1752) 1 Lee 1 (probate of anunexecuted will); Denny v. Barton (1818) 2 Phill.Ecc.575 (probate ofan lUlexecuted letter).

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wording of wills135 and is a useful caveat against possible abuse of thejurisdiction.

The third reason voiced against the power to reform has its genesis inthe statutory formalities as to execution. The Wills Act136 requires that awill be in writing, signed by the testator and proved by two witnesses. Toassume a jurisdiction to reform would, in effect, be to repeal the statuteand to operate this repeal by the admission of extrinsic evidence, which itwas the policy of the statute to avoid.137

On this reasoning, it has uniformly been held that a court has no powerto insert provisions mistakenly omitted from a will, and indeed has nojurisdiction to refonn by omission where the sense of the remainder willbe affected by that omission: the eviscerated will is no longer the will ofthe testator within the tenns of the Wills Act.

However, the Statute of Frauds has not prevented the rectification ofdeeds and contracts on account of mistake where similar formalitiesapply138. Although the question under that statute goes to enforceability,whereas the Wills Act formalities pertain to validity, the principle in-volved in each is the same139. The basis of the doctrine of rectification isthe refonn of an instrument in which the parties140 have mistakenly ex-pressed their agreements141 : "Courts of Equity do not rectify contracts;they may and do rectify instruments purporting to have been made inpursuance of the terms of contracts."142

A fortiori, the doctrine could be applied in succession law where thecourt is dealing with only one mind and the error is more capable ofdemonstration. The essence of the problem in the probate jurisdiction isthat the courts fail to conceive their powers as equitable in nature. Oncethis approach is adopted and the Wills Act no longer considered

135 "It is more important that the probate of the wills of deceased persons be effectivelyshielded from the attacks of a multitude of fictitious mistakes than that it be purged ofwills containing a few real mistakes. The latter is a testator may be due care avoid inhis lifetime. Against the fonner he would be helpless. tt Re Gluckman (1918) 101 A.295t 296 per White J.

136 N.S.W.: Wills, Probate and Administration Act 1898. s.7; Vic.: Wills Act 1958. s.7.137 Harter v. Harter (1873) L.R. 3 P.D. lIt 19; Re Horrocks [1939] P.198t 218-219;

Newburgh v. Newburgh (1820) 5 Madd. 364t 365-366; Re Hemburrow [1969] V.. 764t764-765; In re Tail [1957] V.R. 405t 410 per Lowe J. t 417 per Martin J.; PerpetualTrustee Co. Ltd. v. Williamson (1929) 29 S.R. (N.S.W.) 487; 491; Anon. (1587) Godb.131 pl.149.

138 Hall-Darev.Hall-Dare (1885) 31 Ch.D. 251 (deed); Meeking v. Meeking [1917] 1 Ch.77. (deed); White v. White (1872) L.R. 15 Eq. 247 (conveyance of land); Weiman v.Weiman (1880) 15 Ch.D. 570 (settlement); Collett v. Morrison (1851) 9 Hare 162(policy of life insurance); Druiffv. Parker (1868) L.R. 5 Eq. 131 (bill of exchange);Murray v. Parlcl!r (1854) 19 Beav. 305 (lease); United States v. Motor TrUl:ks Ltd.[1924] A.C. 196; cf. Evans v. Chapman (1902) 86 L.T. 381 t Scott v. Scott [1940] Ch.794 (articles of association can only be altered pursuant to the Companies Act); theadded requirement of witnesses adds nothing in principle.

139 For in Hohfeldian tenns the analogy is direct t as in each case the process of rectificationis designed to give legal rights that were otherwise defeated by mistake.

140 The fact that the instrument is unilateral t bilateral or multilateral is of no relevance:Wright v. Goff (1856) 22 Beav. 207; Killick v. Gray (1882) 46 L.T. 583; Bonhote v.Henderson [1895] 1 Ch. 742; Vander Linde v. Vander Linde [1947] Ch. 306.

141 Cf. Fry on Specific Performance ofContracts (4th ed. 1903) ss.814 et seq.; Wigmoreon Evidence (3rd ed. 1940) Vol.IX s.2417.

142 Mackenzie v. Coulson (1869) L.R. 8 Eq. 368t 375 per James V-C; see also Rose v. Pim[1953] 2 Q.B. 450t 451 per Denning L.J.

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sacrosanct, there is no obstacle to reform in the face of the formalities forthe will is proved and executed in confonnity with the statute: the error issimply one of manifestation.