A will, or any part of it that is the result of a mistake is void pursuant to Fla. Stat. §732.5165. However, the word mistake is not defined in the statute. Under Florida law a will can be set aside because the person signing the will actually thought he was signing a prenuptial agreement or some document other than a will. This is generally referred to as a “mistake in execution.” A will that is the result of a mistake in execution will be set aside by the court.
What a court will generally not do is set aside a will that is the result of a “mistake in inducement.” Assume that dad goes to a lawyer and hires lawyer to prepare a will. Also assume that mom predeceased dad, and dad intends to split all his assets between his kids upon dad’s death. The lawyer sits at his computer and pulls up a will that he made for Mary Smith. The lawyer changes the name of Mary Smith throughout the document to dad’s name, but forgets to change the part of the document that sets up a trust for dad’s children through each child’s life, and gives the balance of that child’s share to the child’s children upon the child’s death.
Dad never reads the whole document and does not realize that on page seven of the will is a trust for the benefit of each of dad’s children (you and your sister) through each child’s life. Further, Greedy Bank is named as trustee. Dad signs the will without reading it fully, and then dad dies a year later. You, one of dad’s children now read the will and realize that Greedy Bank is the trustee of a trust for you throughout your life. You know that dad never intended this, and you also know that dad did not always read everything that he signed. You want to void the part of the will setting up a trust for you and your sister because dad did not fully understand what he was signing (i.e. he made a mistake). This is a form of a mistake in the inducement, and if the clause creating the trust for you and your sister is clearly written, the court will not set the provision aside if you claim that dad made a mistake when he signed the will creating the trust. The same problem would occur if the will gave four parcels of real estate to one child but only two parcels of real estate to the other child. The child would not be able to set the will aside by claiming that dad mistakenly left an extra property to one child if the provisions disposing the property were clearly written. What then can you do in that situation? See Part II.