Mistake

Question 1

Types of Mistake

Answer 1

1. Mistake in content
2. Mistake in execution
3. Mistake in inducement
4. Mistake in description (ambiguity)
5. Mistake in the validity of a subsequent testamentary instrument (Dependent Relative Revocation)
6. Mistake involving living children (pretermission)

Question 2

Mistake in Content

Answer 2

The wrong beneficiary is named or the wrong gift is made

Question 3

Mistake in omission: words are accidentally left out.

Answer 3

No remedy is given, courts do not rewrite wills

Question 4

Mistake in addition: words are accidentally added.

Answer 4

Remedy may be given

The court is not rewriting the Will, just excising a part of it

Question 5

Mistake in Execution

Answer 5

The testator signs the wrong document.

Question 6

Consequence of Testator mistakenly signs his will believing it is a non-testamentary instrument

Answer 6

the will is not probated because testator did not intend the document to be a will.

Question 7

Reciprocal Will (Husband’s will leaves everything to wife, and vice versa. Husband mistakenly signs Wife’s will and
Wife mistakenly signs Husband’s will. Husband dies.)

Consequence:

Answer 7

the court may reform the will in this unique situation of reciprocal wills, especially if the testators are Husband and Wife or domestic partners.

Question 8

Mistake in Inducement

Answer 8

A particular gift is made or not made on the basis of testator’s erroneous beliefs.

Question 9

Mistake in Inducement Rule & Exception

Answer 9

No relief is given, John takes nothing

Relief will be given in one narrow exception:

• If both the mistake and what T would have done but for the mistake appear on the face of the Will, the court will give relief

Question 10

Mistake in description defined:

Answer 10

No one or nothing fits the description or two or more persons or things fit the description

Question 11

Consequences of a mistake in description: Distinguish between latent and patent ambiguities.

Answer 11

Latent ambiguity:

on the face of the will there is no problem. Everything seems fine on the face of the will. You introduce parol evidence to establish the ambiguity, then you introduce the evidence a second time to determine testator’s intent

Patent ambiguity:

the ambiguity is apparent on the face of the will: No remedy

Question 12

Consequences of a mistake in description - Modernly, in California, by statute:

Answer 12

We introduce parol evidence for any type of ambiguity—
latent or patent—to determine what testator’s intent was.

Question 13

Mistake in the Validity of a Subsequent Testamentary Instrument (Dependent Relative Revocation)

A preliminary foundation to understanding DRR requires that you understand two fundamental principles:

Answer 13

1. A will can be revoked by physical act. A physical act includes burning, tearing, destroying or canceling (crossing out or lining out with a pen or pencil).
2. A will also can be revoked by a subsequently executed will.

Question 14

Rule for Dependent Relative Revocation:

Answer 14

1. If testator revokes her will, or a portion thereof,
2. in the mistaken belief that a substantially identical will or codicil effectuates her intent,
3. then, by operation of law,
4. the revocation of the first will be deemed conditional, dependent, and relative to the second effectuating testator’s intent.
5. If the second does not effectuate testator’s intent, the first (by pure legal fiction) was never revoked.

Question 15

Mistake Regarding Living Children (Pretermission)

Answer 15

an accidental omission

Question 16

Rule for Mistake Regarding Living Children (Pretermission)

Answer 16

A child is pretermitted if born or adopted after all
testamentary instruments are executed and not provided for in any testamentary instrument.

A pretermitted child takes an intestate share of the estate
(which includes the assets in testator’s inter-vivos trust).

Question 17

Corollary Rule for A child born or adopted before all testamentary instruments are executed and not provided for in any instrument & Exception to this rule

Answer 17

A child born or adopted before all testamentary
instruments are executed and not provided for in any instrument is not pretermitted. Of course, such a child takes nothing.

Exception to corollary: A child born or adopted before all testamentary instruments are executed and not provided for in any of the instruments is treated as if pretermitted if the only reason the child was not provided for in the testamentary instrument is because testator erroneously thought the child to be dead or not existent—i.e. testator made a mistake.