October 14, 2015
Authored by: Kathy Sherby and Stephanie Moll
With drafting assistance from our Washington University School of Law extern, Alexander Fersa.
It seems the California Supreme Court agrees with Cole Porter that “times have changed.”
Abrogating 50 years of binding case law, in In re estate of Duke, the California Supreme Court elected to treat wills the same as trusts are treated under the Uniform Trust Code by allowing courts to look to extrinsic evidence when determining the intent of the testator. The Court concluded that an unambiguous will may be reformed if clear and convincing evidence establishes (1) that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and (2) the testator’s actual specific intent at the time the will was drafted.
The Court determined that there is no justification for a categorical bar on reformation of unambiguous wills so long as the reformation is supported by