SECOND CONCEPT: MISTAKE

Question 1

Define Mistake in content

Answer 1

The wrong beneficiery is named or the wrong gift is made

Question 2

Whether relief is given for a mistake in content is dependent on what?

Answer 2

the type of mistake: omission or addition.

Question 3

What is a mistake in omission?

Answer 3

words are accidentally left out of the will

Question 4

What is a mistake in addition?

Answer 4

words are accidentally added to the will

Question 5

Testator’s will states, “Blackacre to John.” But

testator actually wanted Blackacre to go to “John and Mary.” What kind of mistake is this? What is the remedy?

Answer 5

Mistake in omission; no remedy is given. MAry’s name is not added.

Question 6

Why is no remedy given for a mistake in omission?

Answer 6

Courts do not re-write wills.

Question 7

Testator wants to execute a will that says, “Blackacre to John,” but the will actually reads, “Blackacre to John and Mary.” What kind of mistake is this? What is the remedy?

Answer 7

Mistake in addition; The court may strike out Mary’s name.

Question 8

Why can there be a remedy given in mistake in addition?

Answer 8

The court is not re-writing a will just excising a part of it.

Question 9

What is a mistake in execution?

Answer 9

The testator signs the wrong document.

Question 10

Under what two situations can mistake in the execution occur?

Answer 10

[1] First situation: Testator mistakenly signs his will believing it is a non-testamentary instrument.
[2] Second situation: Reciprocal wills or mutual wills:

Question 11

What is a reciprocal will?

Answer 11

a reciprocal will or mutual will is when you have 2 testators, each with his or her own will and each leaves everything to the other.

Question 12

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. What is this an example of?
What is the consequence?

Answer 12

It is an example of a mistake in execution where reciprocal wills or mutual wills signed by wrong testator
Consequence: the court may reform the will in this unique situation of reciprocal wills, especially if the testators are Husband and Wife or domestic partners. Thus, for example, where Husband’s name appears, the court will substitute the Wife’s name, and vice-versa. Reasoning: it is equitable.

Question 13

T signs his will thinking it is a power of attorney. What is this an example of? What is the consequence?

Answer 13

It is an example of mistake in execution where Testator mistakenly signs his will believing it is a non-testamentary instrument.
Consequence: the will is not probated because testator did not intend the document to be a will.

Question 14

What is mistake in the inducement for wills?

Answer 14

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

Question 15

Testator would like to leave John $1000, but does not do so because testator erroneously thinks John is dead. In fact, John is alive.
What is this an example of?
What is the consequence?

Answer 15

This is an example of mistake in the inducement

Consequence: No relief is given, John takes nothing

Question 16

Why is no relief given for mistake in the inducement?

Answer 16

based on maintaining the integrity of the Statute of Wills (i.e. the California Probate Code).

Question 17

Under what circumstances will relief be given if there is mistake in the inducement?

Answer 17

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 18

Cody writes: I leave Phil nothing because Phil does not have aids. But were Phil to have aids, I would leave Phil $1000.” (Phil in actuality has aids)
What is this an example of?
Will relief be given? Why?

Answer 18

This is an example of Mistake in the inducement
Relief will be given because the mistake and what T would have done but for the mistake appear on the face of the will and the court will give relief. Phil will get the money for having aids.

Question 19

What is mistake in the description?

Answer 19

no one or nothing fits the description or two or more persons or things fit the description.

Question 20

“I leave my property to my cousin John.” Testator has 2 cousins named John, a first cousin and a second cousin. What is this an example of?

Answer 20

mistake in the description; Two persons fit the description

Question 21

“I leave my beach-house to X.” Testator has 2 beach houses, one on the east coast and one on the west coast. What is this an example of? why?

Answer 21

mistake in the description; Two things fit the description

Question 22

I leave $1000 to the united states cancer society (there is no such society)

Answer 22

mistake in the description; Nothing fits the description:

Question 23

What is a mistake in the description when there is a latent ambiguity? What do you introduce in the situation?

Answer 23

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

Question 24

What is a mistake in the description when there is a Patent ambiguity?

Answer 24

the ambiguity is apparent on the face

of the will

Question 25

testator’s will reads: “I have two cousins by the name of John; I leave $1,000 to my cousin John.”
What is this an example of?

Answer 25

A patent ambiguity for a mistake in the description.

Question 26

How do courts handle a latent or patent ambiguity?

Answer 26

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

Question 27

Mistake in the Validity of a Subsequent Testamentary Instrument is also known as what?

Answer 27

Dependent Relative Revocation (DRR)

Question 28

What is the basis of Dependent relative Revocation?

Answer 28

To allow a court to disregard a revocation caused by mistake

Question 29

A will can be revoked by ________ act

Answer 29

physical

Question 30

What does a physical act include for revoking a will?

Answer 30

A physical act includes burning, tearing, destroying or canceling (crossing out or lining out with a pen or pencil). Example: Testator executes a will and subsequently, with the intent to revoke it, rips it up. Testator has revoked his will by physical act.

Question 31

A will also can be revoked by a ___________ executed will.

Answer 31

subsequently

Question 32

How doesDependent relative Revocation work?

Answer 32

The heart of DRR is that [i] testator executes Will #1, [ii] then executes Will #2 and [iii] subsequently revokes Will #1, thinking that Will #2 effectuates his intent. But testator is mistaken. Will #2 either is invalid as a will, or, if it is valid as a will, fails to effectuate testator’s intent. DRR allows the court to ignore the revocation of Will #1 on the grounds that testator revoked Will #1 because testator mistakenly believed Will #2 effectuated his intent.

Question 33

Testator executes Will #1, a valid will. Thereafter, testator executes Will #2, which is virtually identical to #1 (changes executor or makes small change in a large estate). But #2 is invalid as a will (because, for example, there is only 1 witness instead of 2). Testator mistakenly believing #2 is valid revokes #1 by physical act (e.g. by destroying it). Testator thereafter dies.
What are the consequences? What is the rational?

Answer 33

Will #1, in fact, can be probated under DRR.

Rationale for DRR is that [i] testator simply made a
mistake in the revocation of Will #1 and [ii] notwithstanding the mistake, we know what testator’s intent is because testator stated his testamentary plan, not once, but twice (the two wills are very similar, if not identical). As between intestacy or Will #1, testator would want Will #1 probated (remember it is virtually identical to Will #2)

Question 34

What is the rule for Dependent Relative Revocation?

Answer 34

[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 35

What does California’s lost will provision say?

Answer 35

[a] These provisions state that a lost will or accidentally destroyed will can be probated if at least one witness testifies as to the terms of the will.
[b] The witness does not necessarily have to be one of the attesting witnesses.

Question 36

What is pretermission?

Answer 36

Mistake Regarding Living Children (an accidental omission)

Question 37

What is the pretermission rule?

Answer 37

A child is pretermitted if born or adopted after all
testamentary instruments are executed and not provided for in any testamentary instrument (including inter-vivos trust).
A pretermitted child takes an intestate share of the estate

Question 38

Is A child born or adopted before all testamentary instruments are executed and not provided for in any instrument pretermitted?

Answer 38

No

Question 39

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 what?

Answer 39

testator erroneously thought the child to be dead or not existent—i.e. testator made a mistake.

Question 40

On bar exam what will be the fact pattern for a pretermitted child?

Answer 40

T fathers a child and does not know that child exists.