Law of Wills, 2016A

Chapter Fourteen: Mistakes and Curative Doctrines
14.1 Introduction
Wills prepared by lawyers are just as susceptible to mistakes as holographic wills. This
chapter examines two different types of mistakes---mistakes in drafting and errors in execution.
Sometimes there are mistakes in the content of the will that cause the testator’s property to be
distributed in a way that is inconsistent with what the testator would have wanted. In those types of
cases, courts have to decide whether to fix the mistake or to enforce the plain language of the will.
As a part of the decision-making process, courts have to determine if it is appropriate to consider
extrinsic evidence. Traditionally, in order for a will to be valid, the testator had to strictly comply
with the applicable wills statute, and almost any mistake in the execution process invalidated the will.
For example, if a testator’s will had to be signed by two or more disinterested witnesses, a court
would not probate a will that was signed by only one witness. This strict adherence to the
requirements of the wills statute often resulted in an outcome that was clearly contrary to the
testator’s intent. Consequently, some courts have applied curative doctrines to ensure that they carry
out the testator’s intent. This chapter discusses the two main curative doctrines—substantial
compliance and harmless error.
14.2 Drafting Errors
Persons seeking to have wills reformed have faced a heavy burden. Courts are reluctant to
rewrite the contents of wills because the testators are not present to state their intentions. One court
stated:
“Courts have no power to reform wills. Hypothetical or imaginary mistakes of
testators cannot be corrected. Omissions cannot be supplied. Language cannot
be modified to meet unforeseen changes in conditions. The only means for
ascertaining the intent of the testator are the words written and the acts done by
him.” Sanderson v. Norcross, 242 Mass. 43, 46, 136 N.E. 170 (1922)
In re Gibb’s Estate, 111 N.W.2d 413 (Wis. 1961)
FAIRCHILD, Justice.
1. The intention of the testators as determined from all the evidence. The evidence leads irresistibly to the
conclusion that Mr. and Mrs. Gibbs intended legacies to respondent, and that the use of the middle
initial ‘J.’ and the address of North 46th street resulted from some sort of mistake.
Respondent testified that he met Mr. Gibbs about 1928. From 1930 to 1949 he was employed as
superintendent of a steel warehouse where Mr. Gibbs was his superior. They worked in close
contact. Until 1945 the business belonged to the Gibbs Steel Company. In that year the business was
sold, but Mr. Gibbs stayed on for four years in a supervisory capacity. Respondent remained with
the new company until 1960. After 1949 Mr. Gibbs occasionally visited the plant and saw the
respondent when there. From 1935 to 1955 respondent took men occasionally to the Gibbs home
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