Also known as: swapped will · swap wills · reciprocal wills · mutual wills
Written by attorneys — see sources below.
An execution error in which parties who have prepared reciprocal or mirror wills inadvertently sign each other's instruments rather than their own. The mistake may lead a court to deny probate for lack of testamentary intent as to the signed document or to reform the instruments to carry out the parties' obvious mutual plan.
Samantha Stone and Santiago Sanchez prepared mirror wills leaving everything to each other. At the execution ceremony the documents were accidentally exchanged, so Samantha signed the will drafted for Santiago and vice versa. Years later Samantha executed a new will favoring a charity. Because no separate signed writing evidenced any contract not to revoke, the UPC formalities barred enforcement of any alleged agreement and the later will controlled.
Sarah Sullivan and Samuel Soto intended to execute reciprocal wills at a joint ceremony. Each mistakenly signed the document prepared for the other. The court treated the signature swap as a clear scrivener's error, reformed the instruments to match the parties' obvious intent, and admitted the corrected wills to probate.
In August 1970 Harvey Snide and his wife Rose Snide participated in a common execution ceremony intended to produce mutual wills. Each spouse signed the document prepared for the other after the wills were placed in the wrong envelopes. The attorney, attesting witnesses, Harvey, and Rose completed the ceremony without examining the front pages or attestation clauses of either instrument. The two documents were identical in every respect except for the names of the donors and beneficiaries. Harvey Snide died survived by his widow Rose and three children. Two adult children executed waivers and consented to probate of the instrument Harvey had signed. The minor child was represented by a guardian ad litem who objected to probate. Rose Snide, as proponent, offered for probate the instrument Harvey had actually signed. 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. The Appellate Division reversed that determination on the law.
View caseSome courts refuse probate because the testator lacked intent to execute the particular document signed. Other courts treat the swap as a scrivener's error and reform the instruments to reflect the parties' clear mutual plan.
No. The UPC expressly states that execution of joint or mutual wills creates no presumption of a contract not to revoke. An enforceable succession contract requires one of the three statutory methods of proof.
Proof must come from will provisions stating material contract terms, an express will reference to a contract plus extrinsic evidence, or a separate writing signed by the party alleged to have breached. Swapped execution itself supplies none of these.
…not directly analogous with the present case, courts in other jurisdictions have also declined to reform or give effect to mutual wills that were mistakenly executed as a result of one testator erroneously signing the will prepared for the other. For example, in In re Estate of Pavlinko , 394 Pa. 564, 148 A.2d 528 (1959),…