Also known as: sham will
Written by attorneys · grounded in primary & secondary sources — see below
A document that appears on its face to be a will and contains recitals declaring it the testator's last will raises only a rebuttable presumption of testamentary intent. Extrinsic evidence may show that the instrument was executed solely for a collateral non-testamentary purpose. In such circumstances the document is not effective as a will and is not admitted to probate.
Solomon Silver signed a document titled This Is My Last Will that left his estate to Sofia Stern, his romantic partner. Silver told a coworker he created the document only to keep Stern from reporting workplace boundary issues to hospital compliance. After Silver's death Stern offered the document for probate. The court admitted the coworker's testimony and denied probate because the extrinsic evidence rebutted the presumption of testamentary intent.
Scott Summers executed a document with will formalities during an initiation into a secret order and left his property to the order's leader. Summers later told a friend the signing was only a required ceremony and he never intended the paper to control his estate. After Summers died the order sought probate. The court refused admission because the evidence showed the document served only the collateral ceremonial purpose.
Select any source to read its text and confirm it supports the definition.
Yes. A writing that looks like a will creates only a rebuttable presumption of testamentary intent. Courts admit extrinsic evidence of a collateral non-testamentary purpose to overcome that presumption.
Contemporaneous statements by the testator that the document served only to induce another person's action, such as accepting a rent increase or halting a protest, demonstrate the required collateral purpose.
No. Formalities create only a presumption. When credible extrinsic evidence shows the document was created solely for a non-testamentary purpose the presumption is rebutted regardless of proper execution.
Statements made close in time to execution that explain the document served only a temporary collateral goal are admissible and may overcome the presumption when they are consistent and credible.