Mistakes and Curative Doctrines

• Author: Browne C. Lewis
• Pages: 588-616

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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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to do necessary work about the place. He also visited there socially several times a year and saw both

Mr. and Mrs. Gibbs. Mrs. Gibbs had made a few visits at the plant before 1949 and respondent had

seen her there. Mr. Gibbs did not visit respondent’s home, although on a few occasions had

telephoned him at home. Mr. Gibbs always called respondent ‘Bob.’

Miss Krueger, who had been the Gibbs’ housekeeper for 24 years up to 1958 and was a legatee

under both wills, corroborated much of respondent’s testimony. She also testified that Mr. Gibbs

had told her he made a will remembering various people including ‘the boys at the shop,’ referring to

them as ‘Mike, ′d and Bob.’

Miss Pacius, a legatee under both wills, who had been Mr. Gibbs’ private secretary for many years

while he was in business, testified to Mr. Gibbs’ expressions of high regard for respondent. Another

former employee also testified to a similar effect.

Of the individuals named in the wills as legatees, all except two were shown to be relatives of Mr. or

Mrs. Gibbs, former employees, neighbors, friends, or children of friends. The two exceptions were

named near the end of the will and proof as to them may have been inadvertently omitted. ‘Mike,’

named in the will, was a warehouse employee under the supervision of respondent.

The attorney who drew several wills for Mr. and Mrs. Gibbs produced copies of most of them. They

were similar in outline to the wills admitted to probate except that Mr. Gibbs’ wills executed before

Mrs. Gibb’s death bequeathed his property to her, if she survived. The first ones were drawn in 1953

and each contained a bequest to ‘Robert Krause, of Milwaukee, Wisconsin, if he survives me, one

per cent (1%).’ There was testimony that Mrs. Gibbs’ will, executed in August, 1955, contained the

same language. In the 1957 wills the same bequest was made to ‘Robert Krause, now of 4708 North

46th Street, Milwaukee, Wisconsin.’ In several other instances street addresses of legatees were given

for the first time in 1957. In the 1958 wills the same bequest was made to ‘Robert J. Krause, now of

4708 North 46thStreet, Milwaukee, Wisconsin.’ The scrivener also produced a hand-written

memorandum given to him by Mr. Gibbs for the purpose of preparing Mr. Gibbs’ 1958 will, and the

reference on that memorandum corresponding to the Krause bequest is ‘Bob, 1%.’ ″our bequests

(to Gruener, Krause, Preuschl and Owen) appear in the same order in each of the wills and are

reflected in the memorandum referred to as ‘″red Gruener, Bob, Mike, and ′d.’ Gruener, Preuschl

and Owen were former employees of Gibbs Steel Company, as was respondent. Owen’s residence is

given as Jefferson, Wisconsin, in all the wills. In the 1953 wills, the residence of Gruener, Krause

and Preuschl was given only as Milwaukee, Wisconsin. At street address was inserted for the first

time in each case in the 1957 wills, and repeated in the later ones.

Prior to 1950 respondent had lived at several different locations. From 1950 until April, 1960, he

lived at 2325 North Sherman boulevard. We take judicial notice that this address and 4708 North

46thStreet are in the same general section of the city of Milwaukee, and that both are a number of

miles distant from the Gibbs’ home. We also take judicial notice that the telephone directory for

Milwaukee and vicinity listed 14 subscribers by the name of Robert Krause with varying initials in

October, 1958, and 15 in October of 1959. The listing for appellant gives his middle initial J. as well

as his street address.

The only evidence which suggests even a possibility that Mr. or Mrs. Gibbs may have known of

appellant may be summarized as follows: