Mistake

Question 1

Mistake in Content

Answer 1

wrong beneficiary/wrong gift
Omission = no remedy, can’t rewrite wills
Mistake in adding someone = can remove (not rewriting will, just excising)

Question 2

Mistake in Execution

Answer 2

Testator signs wrong document:

1) If he didn’t intend to be will, it won’t be
2) If husband and wife sign each other’s on accident, you give them the gift anyway as if they signed it correctly

Question 3

Mistake in Inducement

Answer 3

Gift made based on erroneous belief (you think guy’s dead, he’s not), NO REMEDY
UNLESS: Mistake AND it says in the will “Won’t give John anything cause he’s dead, if he was alive I’d give him something”

Question 4

Mistake in Description (ambiguity)

Answer 4

Nothing fits description or 2 things fit description
LATENT AMBIGUITY: Face of will is good, use parol evidence to establish ambiguity, then to establish intent
PATENT AMBIGUITY: face of will it’s confusing (old case say no remedy)
MODERN APPROACH: parol evidence always allowed to determine intent

Question 5

Mistake in Validity of a Subsequent Testamentary Instrument (Dependant Relative Revocation) DRR

Answer 5

When testator executes will #1, then makes will #2, physically destroys/revokes will #1, but Will #2 is either invalid or does not effectuate testator’s intent. DRR allows court to ignore revocation of will #1 because of mistake

Question 6

DRR’s rationale:

Answer 6

Simple mistake, we can tell for sure what the intent was because of first will.

Question 7

DRR technical rule:

Answer 7

1) If testator revokes will or portion; 2) in MISTAKEN belief that SUBSTANTIALLY IDENTICAL will/codicil effectuates her intent; 3) then by operation of law 4) revocation of first will is conditional on second will effectuating the intent/being valid; 5) if #2 is invalid or does not effectuate intent, #1 through pure legal fiction is never revoked.

Question 8

DRR using parol evidence to determine destroyed will

Answer 8

can be probated so long as 1 witness testifies as to its terms, does not have to have been a signed witness

Question 9

Mistake Regarding Living Children

Answer 9

AKA Pretermission: Accidentally omitted Child: Born/adopted after will drafted; takes an intestate share of estate. IF BORN BEFORE WILL WAS DRAFTED, OMITTED FOR A REASON! (unless he was omitted b/c parent thought he was dead