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Mistakes Made in a Will in Arizona

Posted on : December 6, 2016, By:  Christopher Hildebrand

Mistakes Made in a Will in Arizona

Probate courts interpret provisions in a will to fulfill the intention of the person making the will, referred as the testator of the will. What if evidence suggests that the testator did not write what he meant to write? Does the court attempt to correct the error or does it interpret the terms as written?

The Arizona Court of Appeals considered these issues in the case of Matter of Estate of Blacksill, 602 P.2d 511 (1979).

Facts and Background

Mr. Blacksill was an experienced probate attorney. He had two brothers and a sister, but all three died before he did. His sister had two children who survived Mr. Blacksill. One of his brothers died without children. The other had two children, but only one of whom survived Mr. Blacksill. The child who died had an adopted son.

Mr. Blacksill dictated his will from his hospital bed. He specified that the residuary estate was to be divided into four equal parts. His secretary, Mrs. McLaughlin, was to get one part. The other three equal parts were to go to the children of his sister and the children of his brothers.

During probate, an argument arose about who Mr. Blacksill intended to take the three remaining parts. The nephews and nieces claim that Mr. Blacksill intended to give one part each to the two surviving children of his sister and one surviving child of his brother. However, the adopted child of the deceased nephew also claimed a share. And what to do about the bequest to the children of the childless brother?

Mistakes Made in a Will in Arizona.

Mistakes Made in a Will in Arizona.

The trial court ruled that Mrs. McLaughlin and each of the four descendants of the siblings should receive a 3/16ths share of the residuary estate. The nephews and nieces appealed.

No Parole Evidence Admitted to Alter Terms of the Will

The dispute about this will concerns the residuary clause in the will. It divides the residuary estate into “four equal parts.” It then leaves:

“one of such equal parts to my secretary of 50 years, Mrs. McLaughlin, and one of such equal parts to the children of my deceased sister, and one of such equal parts to the children of each of my deceased brothers.”

Since one of Mr. Blacksill’s brothers left no surviving children, the will was considered to contain ambiguity. The trial court did not consider extrinsic evidence that Mr. Blacksill meant something other than what he wrote. Thus it excluded evidence that Mr. Blacksill was close to his nieces and nephews, but not his grand-nephew. The Court of Appeals agreed that this type of parole evidence would have been improper to allow in the case.

The draftsman of the will testified that Mr. Blacksill dictated the will to him. The draftsman said that he thought Mr. Blacksill made a mistake. He believed that Mr. Blacksill did not intend to leave property to the descendants of the childless brother. He believed he must have mistakenly transcribed it.

The Court of Appeals noted that opinion testimony was speculative. Even in cases of clear draftsman’s error, courts refuse to reform a will. And here the draftsman read it back to Mr. Blacksill, a probate attorney, who executed and signed it and Mr. Blacksill wrote and signed the will three years before he died. He never changed his will during the three years between the date he made the will and when he passed away.

The Court of Appeals could not determine what Mr. Blacksill meant by the disposition to the children of his childless brother. Therefore, it construed the will as written.

Construing the Will as Written

The Court interpreted the will provisions as written. It ruled that the children of the deceased sister would share one-fourth of the residuary estate. Likewise, the children of the brother each get an undivided one-eighth interest. Under the anti-lapse statute, the grand-nephew takes his father’s share.

The disposition to the children of the childless brother fails. That portion of the residuary estate passes by intestate succession. The four heirs each receive an undivided one-sixteenth interest in that portion of the residuary estate in addition to the 1/8 (2/16) interest.


The Court of Appeals affirmed. The trial court properly determined that each nephew, niece, and grandnephew take an undivided three-sixteenth interest in the estate.

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