Remedying formal irregularities in wills: A comparative analysis of testamentary rescue in Canada and South Africa

Abstract

This article examines the testamentary rescue provisions contained in the statutes governing wills in Manitoba, British Columbia and South Africa, as well as some of the jurisprudence on the interpretation and application of these provisions. The article thus provides an instructive legal comparative analysis of how formally irregular wills are judicially rescued and, therefore, how testamentary formalism is tempered to ensure that testamentary intentions embodied in informal documents are effectuated in the three jurisdictions under discussion. The article also evaluates (in broad terms) the efficacy of Manitoba’s, British Columbia’s and South Africa’s respective testamentary rescue dispensations, and attends to some lessons and possible solutions to challenges arising from these jurisdictions’ engagement with testamentary rescue.