418 N.E.2d 656 (N.Y. 1981)
In August 1970 Harvey Snide and his wife Rose Snide participated in a common execution ceremony intended to produce mutual wills.1 Each spouse signed the document prepared for the other after the wills were placed in the wrong envelopes.2 The attorney, attesting witnesses, Harvey, and Rose completed the ceremony without examining the front pages or attestation clauses of either instrument.3 The two documents were identical in every respect except for the names of the donors and beneficiaries.4
Harvey Snide died survived by his widow Rose and three children.5 Two adult children executed waivers and consented to probate of the instrument Harvey had signed.6 The minor child was represented by a guardian ad litem who objected to probate.7 Rose Snide, as proponent, offered for probate the instrument Harvey had actually signed.8
The Surrogate decreed that the instrument could be admitted to probate and reformed by substituting the name Harvey wherever Rose appeared and the name Rose wherever Harvey appeared.9 The Appellate Division reversed that determination on the law.10
Whether an instrument signed by the decedent during a mutual wills execution ceremony but prepared for his spouse may be admitted to probate?11
Of course it is essential to the validity of a will that the testator was possessed of testamentary intent (*Matter of May*, 241 N.Y. 1; 64 N.Y. Jur., Wills, § 11; see EPTL 1-2.18), however, we decline the formalistic view that this intent attaches irrevocably to the document prepared, rather than the testamentary scheme it reflects.12 When mutual wills are identical except for the names of the donors and beneficiaries and are executed simultaneously with statutory formality at a common ceremony, the instrument may be admitted to probate despite the mistake in signing.13
Yes. The established facts demonstrate that Harvey Snide and Rose Snide executed the wills at the same ceremony with the same attesting witnesses.14 The documents were identical except for the names.15 There is no danger of fraud because the nature of the testamentary scheme is fully explained by the surrounding circumstances.16 This situation is analogous to signing a carbon copy by mistake, and the intent to execute the mutual plan is clear from the record.17
The instrument Harvey Snide actually signed may be admitted to probate.18
Related opinions on this issue
Joined by Chief Judge Cooke And Judge Gabrielli
Judge Jones dissents.19 He argues that the statute of wills requires that the specific paper writing signed be the one intended as the will.20 Admitting the instrument here would depart from consistent precedent in New York and other jurisdictions.21
He fears the decision cannot be contained to this appealing case and could lead to reformation in other mistake scenarios such as when drafts differ substantially.22 Judge Jones would affirm the Appellate Division to adhere to the precedents protecting against fraudulent alterations.23