Mistake Flashcards
Probate court is inquisitorial
Means court can investigate things, not limited to the 4 corners of the will. Can look at extrinsic evidence that may conflict with what is on the face of the will.
Court of Construction
Limited in kinds of evidence they can hear particularly for mistake. Can only look at 4 corners.
What court deals with mistake?
Both. Mistakes that can be fixed by probate court and others that can be fixed by construction and some require both to work together.
Patent Mistakes
Mistake that will result in probate refusal. No fraud but a mistake on a key fact that resulted in disposition of a gift.
What does evidence have to show for patent mistake?
That testator was mistaken in the belief AND relied on this mistaken belief in making the gift
Re Wright
Patent Mistake
Facts: testator didn’t know daughter and wife still alive and willed to a stranger.
Ratio: will not probated, he never would have done this if he knew they were alive. If not probated goes to intestacy
Drafting Errors
Courts can fix some drafting errors
What is a probate court able/ unable to do?
Can never add anything into a will, can only strike things out
Re Morris
Facts: drafting error made by clerk, revocation clause supposed to revoke 3 and 7 instead it was 3-7.
Ratio: If drafting error made by lawyer who is incompetent, that does not give T the result they wanted, but T has read it and approved it, then that drafting error cannot be fixed. There was knowledge and approval. However, if there was an error in the drafting that the lawyer didn’t even pick up on, not due to incompetence, then the Court will hold that there was no knowledge and approval
Execution of the Wrong Instrument
Sign someone elses will instead of your own. Rare but sometimes happens with mirror wills.
Re Brander
Facts: probate court wrote in correct names at top of wills
Ratio: Court of probate cannot write in names on the instrument if you have executed the wrong one. Cannot add only strike.
