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.
Changes & Death of Beneficiaries Lapse = Failed Gift (Beneficiary dies before testator) Result: If any portion of the residuary fails, the residuary absorbs the failed gift. If the entire residuary fails, then the gift passes through intestacy. Void Gifts = A gift is void when the beneficiary is dead at the time the will is executed, so it was void at the outset. BEQUESTS: Specific Bequest = Identifies the piece of property (i.e. I give my house to X and my watch to Y) If a specific gift fails, that property lapses and passes to the residuary; if the residuary fails, passes through intestacy. General Bequest = Gives a general bequest of money or “my car” by doesn't specify which car. Ex: “I give you 100 shares of apple stock.” At the time he executed the will and when he dies he has no apple stock. A general bequest imposes a duty on the executor to go out and buy 100 shares of stock—general bequest speaks to the hopes of the testator and that the executor is required to satisfy. If it's a mere general bequest and doesn't exist at death, treated as a direction. In a specific bequest, that doesn't exist at the time of death, the gift fails (Ademption). If general bequest money taken from the residue. Demonstrative Gift = A general gift, the source of which has been specified. “I give you $1k from my B of A account” Residuary Bequest: Everything else in the estate (residual) I.e., “I give the rest of my estate to Fred”/ “I give everything to LLS” If the residuary bequest fails in whole, drops to intestacy. Partial Residuary Bequest: If the residuary gift fails in part (T gives the residue of his estate to A and B; B predeceases T) Then two options: Common Law: Partially failed R passed through intestacy. CA APPROACH (Modern Trend) = Partially failed residuary gift passes with the rest of the residuary. CA Section 21-101: This applies to will, trust, deed, and any other instrument. WAYS TO SAVE A FAILED GIFT:::::