Wills 5 : Wrong Envelope

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Q: Father and Mother intended to execute mutual wills at a common execution ceremony.  By mistake, each executed the will intended for the other.  Except for the obvious differences, the wills are identical.  Each passes the entire estate to the surviving spouse.

The mistake occurred through the giving of the wills to Father and Mother in wrongly-marked envelopes.  The so-called attorney, the attesting witnesses and my parents all proceeded with the execution ceremony without anyone taking care to read the front pages, or even the attestation clauses of the wills, either of which indicates the error.

For probate, Mother has offered the will that Father actually signed, saying that it should be reformed to substitute the name of Father wherever the name of Mother appears, and vice versa.  Unlike my siblings, I am anxious for a present share of the estate: for a denial of probate and the operation of the intestacy statute.

A: Under these circumstances, it would be perverse for a court to nullify, rather than sustain, your parents’ testamentary scheme.  Not only do the two instruments constitute reciprocal elements of a unified testamentary plan, they both were executed with statutory formality, including the same attesting witnesses, at a contemporaneous execution ceremony.  A court will surely uphold such identical mutual wills – both simultaneously executed with statutory formality.

By: Scott Baron,
Attorney at Law Advertorial

The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.

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