EveryBody's Guide to the Law

such a case, the law presumes that the testator merely “forgot” about the child when making
the will and didn’t intend to disinherit the child. But if the will makes any mention of the
child, this is usually enough for a court to hold that the testator was thinking of the child
when the will was made and intentionally failed to give the child any property. In most states,
an omitted child usually is entitled to the same share he or she would have received if the parent
had died without a will. This could be as much as one-third, one-half, or even all of the
estate, depending upon the state, the circumstances, and whether a surviving spouse or any
other children are entitled to share in the estate.
Mistakes
What happens if someone mistakenly believes that the person to whom he or she was going to
give all of his or her estate is dead and therefore gives all of the property to others? As long as
no one intentionally convinced or tricked the testator into believing that the intended beneficiary
was dead, the will generally is carried out as written. A judge can change the will, however,
if the will clearly shows both the testator’s mistaken belief as to the death of the
intended beneficiary and what property the testator would have given the beneficiary had the
testator known the intended beneficiary was alive. For example, suppose Becky’s will reads, “I
would have given my house to my friend Dorothy Dandridge, but unfortunately she is dead. I
therefore give the house to my cousin Sam Goldberg.” In such a case, the judge probably
would award the house to Dorothy Dandridge if she is actually alive and Becky was mistaken
as to her death.
Now suppose that Becky’s will merely stated, “I give my house to my cousin Sam Goldberg.”
There is no mention of Dorothy Dandridge anywhere in the will. If Dorothy could prove that
Sam (or someone acting on his behalf) deliberately led Becky to believe that Dorothy was dead
so she would give the house to Sam instead of to Dorothy as Becky had planned, the judge
would void the gift to Sam and give the house to Dorothy. But if Becky was merely mistaken as
to Dorothy’s death and no one had deliberately misled her, the house will go to Sam, as her mistaken
belief of Dorothy’s death does not appear on the face of the will, nor does it appear that
Becky would have given her house to Dorothy had she known Dorothy was in fact living.
Here is a different type of mistake: A lawyer draws up mutual wills for a husband and wife.
The husband inadvertently signs his wife’s will, and the wife signs her husband’s will. No one
catches the mistake, and the witnesses sign the wills. When the husband dies, the mistake is
discovered. Which will gets probated, the one the husband actually signed (his wife’s), or the
will he thought he was signing (his own, the one signed by his wife)? Neither. The husband’s
innocent mistake in signing his wife’s will (and her mistake in signing his) invalidates the will,
as the husband intended to sign his will, not his wife’s. And the intent cannot be transferred
from one document to another. The husband’s property is then distributed as if there were no
will.
Wills 151