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Wills • Capacity
WILLS#021
Legal Definition
Mistake in the execution occurs where there is a mistake regarding the character of the document—as there is not intent to make a will, the document cannot be probated.
Plain English Explanation
If a testator has an intention to execute a specific will but mistakenly executes a different document thinking it was the will they intended to execute, then a court will not probate the will. This can be proven using extrinsic evidence, meaning evidence that can show the testator intended to sign something else. This can commonly happen when a husband accidentally executes their wife's will after getting them mixed up. However, note that there are some exceptions to this rule. First, if two parties have mutual or reciprocal wills, then courts will reform them if a mistake in the execution occurs (this is covered in another card). Second, if the will that is executed is pretty much the same as the version that was intended to be signed, some courts will probate it.
Hypothetical
Hypo 1: Bob is super indecisive about how he wants to divide his estate. He's driven his lawyer crazy by asking for numerous revisions and versions. Sometimes he leaves his house to his son, sometimes he wants to leave it to his friend. Other times he wants to donate everything to a charity. After reviewing the different variations of the wills, Bob decides to go with the one that leaves everything to charity and executes the will. He texts the charity and lets them know that he chose to leave them everything. A month later Bob dies and, when his will goes to probate, it turns out Bob actually signed the version that leaves his house to his son. When the charity finds out, they produce the text that says he signed the one that gives them everything. Result: This is a mistake in the execution. Bob's intention was to sign the version of the will that gave everything to the charity, but mistakenly signed the version that gave the house to his son. Given these facts, the court will not probate Bob's will because it doesn't actually reflect his testamentary intent.
Visual Aids
Related Concepts
How do you make a prima facie case for undue influence?
In California, can an attorney who drafts a will for their client be a beneficiary?
In California, when is there a statutory presumption of undue influence?
In California, when is there no presumption of undue influence for a donative transfer?
What happens if someone fraudulently prevents someone from creating a will?
What is an insane delusion?
What is fraud in the execution?
What is fraud in the inducement?
What is required for valid testamentary capacity?
What is required to establish fraud?
What is undue influence?
What relief is available if mistake in the inducement occurs?
When assessing undue influence, what is the presumption test?
