Article: Rectification of Testamentary Writings in Scotland, England and Wales, and Australia

Daniel James Carr (University of Edinburgh Law School) recently published, Rectification of Testamentary Writings in Scotland, England and Wales, and Australia, Journal of Equity, forthcoming. Provided below is an Abstract:

This article considers statutory and non-statutory means of rectifying a testamentary writing in Australia, England and Wales, and Scotland. Assessing the statutory provisions in the comparator jurisdictions shows that there are tangible differences between the statutory regimes. Such differences embody different policy decisions concerning the importance of formally recorded testamentary intention in an instrument and the circumstances in which it will be possible to resort to rectification based upon other means of identifying the testator’s intentions or instructions. Differences between the non-statutory routes to rectification in the Scottish and the Anglo-Australian traditions are outlined, and the article identifies enduring questions about the precise contours of the non-statutory rectification jurisdiction in each tradition. The article concludes by noting the benefits of looking at the evolution of the different rectification approaches together and how they fit with changing approaches to the importance of insistence upon strict testamentary formalities.