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Report No. 110

VII. Mistake

12.46. Mistakes in will.-

At this stage, we would like to discuss one matter in regard to which the Succession Act is silent, but which appears to be fundamental. The intention to make a will, described by lawyers as animus testandi, may be lacking, not only owing to the circumstances mentioned in section 61, but also because of a mistake on the part of a person executing a document as his will. Thus, when a person duly executes a document believing it to be his will, whereas, in fact, it is a document prepared as the will of another person, the document cannot be admitted to probate1 as his will. Of course, such a situation might also arise as a result of fraud. But the same situation arising because of mistake cannot be ruled out2.

1. Estate of Meyer, 1908 Probate 353.

2. See Henry, Summerfield Knowledge and Approval, (1956) 106 LJ 694.

12.47. Insertion of words without knowledge.-

There is also the situation where a testator executes a document into which words, or wrong words, have been inserted without his knowledge, or from which words have been omitted without his knowledge. Here again, in England1, it has been held that while the court cannot include words omitted by mistake except in certain cases, it can delete certain words2.

1. Cory (in re:), (1955) 1 WLR 725. Discussed in Lee Correcting Testator's Mistakes: Probate Jurisdiction, (1969) Vol. 33, Conveyancer (New Series), p. 322.

2. See Fulton v. Andrews, 7 HL 448; (1874-1880) All ER 1240.

12.48. General principle of law.-

It is a general principle of law that deeds of contracts may be avoided for duress at the instance of the coerced party and if it can be proved that the document is not his then the document is rendered void by reason of duress1. Any deed, contract or transaction entered into tinder duress is voidable by the person concerned2.

1. Goff and Jones Law of Restitution, (1978), p. 163.

2. Barton v. Armstrong, (1975) 2 WLR 1050.

12.49. Provision in Germany.-

This brings us to the question of mistake. The German Civil Code1 has taken a new and much simplified course on the whole matter. Any kind of "declaration of intention" is voidable on the ground of fundamental error, even if the mistake is unilateral; but its voidable only, and subject to the duty of compensating any party for damage incurred by relying on the validity of the act. Our law, following the traditional common law, does not go so far.

1. D.G.B. sections 119-122, cited in Pollock Contracts, (1950), p. 381.

12.50. Non est factum.-

In certain cases, a person may deny that a written document is his: non est factum. To sustain this plea, he must be able to prove that he was mistaken as to the very nature and character of the document; a mistake merely as to contents of the document will not be sufficient. If the plea is established, then any contract embodied in the written document is void. No title to land or chattels will pass to the transferee, and money paid under the contract will be recoverable on grounds of total failure of consideration.1-2

1. Goff and Jones Law of Restitution, (1978), p. 163.

2. Fallie v. Lee, 1971 AC 1004, followed in Union Dominions Trust Ltd. v. Western, 1976 QB 573.

12.51. Need for amendment regarding mistake.-

It would in our view be a proper course if, when it is discovered that mistakes have occurred in drafting wills, the courts are given a power to correct mistakes. At least where a clerical error is made in the drafting of the will or where there has been misinterpretation of the instructions of the testator by the draftsman, such a power may further the cause of justice. If the language is to be made to conform, in substance, to what the testator really intended, some such power is desirable.

12.52. Recommendation as to mistake (Amendment of section 61 recommended).-

The situation is really analogous to that described in section 59, Explanation 4, which (so far as is material) provides that no person can make a will while he is in such "state of mind" that he does not know what he is doing. The second illustration to section 59 takes a case where a person executes an instrument purporting to be his will, but does not understand the nature of the instrument or the effect of its provisions.

The instrument, it says, is not a valid will. However, the words "state of mind" in section 59, Explanation 4, may not literally cover the situation now under discussion. The matter could be placed on a sounder footing by adding, in section 61, after the words "the free agency of the testator", the words "or by mistake"1. We recommend that section 61 be amended accordingly.

1. For the text of section 61, see para. 12.30, supra.



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