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In re Pavlinko

    Brief Fact Summary. Vasil Pavlinko signed will that created for and purported to be written by his wife Hellen Pavlinko. The couple had identical wills drawn up leaving their properoty to each other and naming the same residual legatee. The will signed by Vasil Pavlinko but signed by Hellen Pavlinko was submitted for probate after Vasil Pavlinko’s death.

    Synopsis of Rule of Law. A will is not valid if the will specifically purports to be the will of one person but is signed by his or her spouse.

    Facts. Husband and wife, Hellen and Vasil Pavlinko agreed to leave their property to each other in the event that either of them died. Hellen Pavlinko signed the will that was created for her husband and Vasil Pavlinko signed the will that was created for his wife. Hellen’s will was never offered for probate at her death. The will created for Hellen but signed by her husband was dated March 9, 1949. Vasil Pavlinko died February 8, 1957 and Hellen Pavlinko died before her husband on October 15, 1951. The lawyer who created the will and his secretary, Miss Zinkam both signed as witnesses. Miss Zinkam admitted she did not understand the conversation that took place between the Pavlinko’s and did not speak their language. The residuary legatee named in the will in question was Helen’s brother.

    Issue. Whether a will is valid if it is signed by a person other than the indivudal that is referenced to in the will as being the creator of the will.

    Held. No. The Wills Act specifically requires that a will be in writing and signed by the testator. Here the will was not signed by the person whom the will describes as being the creator. Even though the facts show that the husband signed his wife’s will by mistake and both the spouse and the husband intended to leave their property to each other, the will cannot be probated because it does not meet the requirements. Such a holding would leave room to fraudulent claims.

    Dissent. The Pavlinkos’ wills were identical. They left each other their property and had the same residual legatee. The attorney knew the language the Pavlinko’s spoke in and versed with them in this language. The intent of the testator must be determined by looking at the four corners of the will signed. Because the couple both left their residuary estate to the same person, the will should be admitted for probate. In addition, the residuary clause can stand on its own so the whole will should not be submitted for probate.

    Discussion. The court will strictly adhere to staturory will formation reaquirement that the testator sign his or her own will unless there is evidence to show that someone else is unjustly enriched by the purported error.


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