Courts require that the mistake must be something beyond the knowledge of the testator, something the testator couldn't have known. Because if its something the testator could have known, its not a mistake. Evidence of Mistake By Act Failed alternative plan = There must be an alternative plan of disposition that fails. Alternative plan that fails mean that T tried to come up with something else but it T tried to didn’t worki.e., write a new will, but it didn't work (i.e., wasn't witnessed properly). By Writing Express terms of new will **With Revival, looking for intent; with DRR, looking for mistake.** **Revival only will bring back entire will; DRR works on wills & gifts within wills** DRR HYPOS: HYPO #1: Suppose that clause 5 of typewritten will provides: T’s “I bequeath the sum of $1,000 to my nephew, Charles Blake. crosses T out the and “$1,000” substitutes “1,500” What did he do? Partial revocation by physical act (Not a codicil because it is not a subsequent writing) CA allows partial revocation by physical act What happens now? Gift passes through intestacy Modern view/ CA: treat the gift as part of residuary clause. What was intent? To give his nephew more money. T’s Will this revision work? No, wont work because no two witnesses (not wills act compliant) Holo? The material provisions of the will must be in the testators writing (who gets what) here, everything it – types other than the amount changed, so its NOT a valid holo. Now, apply DRR Valid will? YES Valid revocation? YES Was there a mistake of fact or law? Yes, there was a mistake of law because he thought he would legally change his will.
Courts require that the mistake must be something beyond the knowledge of the testator, something the testator couldn't have known. Because if its something the testator could have known, its not a mistake. Evidence of Mistake By Act Failed alternative plan = There must be an alternative plan of disposition that fails. Alternative plan that fails mean that T tried to come up with something else but it didn’t worki.e., T tried to write a new will, but it didn't work (i.e., wasn't witnessed properly). By Writing Express terms of new will **With Revival, looking for intent; with DRR, looking for mistake.** **Revival only will bring back entire will; DRR works on wills & gifts within wills** DRR HYPOS: HYPO #1: Suppose that clause 5 of T’s typewritten will provides: “I bequeath the sum of $1,000 to my nephew, Charles Blake. T crosses out the “$1,000” and substitutes “1,500” What did he do? Partial revocation by physical act (Not a codicil because it is not a subsequent writing) CA allows partial revocation by physical act What happens now? Gift passes through intestacy Modern view/ CA: treat the gift as part of residuary clause. What was T’s intent? To give his nephew more money. Will this revision work? No, wont work because no two witnesses (not wills act compliant) Holo? The material provisions of the will must be in the testators writing (who gets what) – here, everything it types other than the amount changed, so its NOT a valid holo. Now, apply DRR Valid will? YES Valid revocation? YES Was there a mistake of fact or law? Yes, there was a mistake of law because he thought he would legally change his will.
Wills-and-Trusts-Sliskovich-2015.docx