In re Pavlinko’s Estate

The Facts

  • H died Feb. 1957
  • W died Oct. 1951
  • Will for W from 1949 was signed by H
  • H and W had hired a lawyer to draw their wills and each wished to leave their property to the other
  • By mistake W signed H’s will and H signed wife’s will
  • Lawyer and his secretary signed as witnesses
  • Secretary could speak H or W’s language and never actually spoke with them
  • H and W kept wills
  • W’s will was never offered for probate at her death
  • Instrument B offered for probate read, “I, Hellen, … declare this to be my last will and testament”
  • W provided in her will (signed by H) that should H predecease her, the estate was to go to B

Procedural History

  • Will was offered for probate by W’s brother as H’s will
  • Probate was refused by PC
  • AC affirmed

The Issue

  • Whether a will, signed by husband but purported to be W’s will, was valid as H’s will

The Rule

  • Every will shall be in writing and shall be signed by the testator at the end thereof.

The Holding/Disposition

  • No

Court’s Reasoning

  • The will of W that left everything to H could not be probated as H’s will
  • In order to find for B, the will would have to be almost entirely rewritten
  • Once a Court starts to ignore or alter or rewrite or make exceptions to clear, plain and unmistakable provisions of the Wills Act in order to accomplish equity and justice in that particular case, the Wills Act will become a meaningless, although well-intentioned, scrap of paper, and the door will be opened wide to countless fraudulent claims which the Act successfully bars.

Dissents or Concurrences

  • The intent of the testator must be drawn from the four corners of his will
  • From both wills it was clear that should one predecease, H and W wanted estate to go to B

Residuary clause need not necessarily perish because it can stand on its own

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