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 clear and convincing evidence, which would provide adequate protection against evidentiary concerns that originally led to the bar on reformations of unambiguous wills.
In this case, Duke wrote a holographic (i.e. hand-written, unwitnessed) will in 1984, providing that all of his property was to be given to his wife, but if he and his wife died in a common disaster, his property was to go to named charities. Duke’s wife died in 1997, but Duke never revised his will after her death.
When Duke died in 2007, the charities petitioned the court to admit the will to probate as the beneficiaries of the will. Duke’s nephews, however, as his only surviving heirs, objected, arguing that Duke had died intestate (without a valid will) since the condition in Duke’s holographic will was not ambiguous and there was no provision in the will disposing of the property in the event that Duke’s wife simply predeceased him.
The Court had previously ruled that although a will is to be construed according to the intention of the testator and in a manner so as to avoid intestacy, a court may not rewrite an unambiguous will including provisions that testator did not write or include.
After fully reviewing the Court’s long-standing rule against considering extrinsic evidence to determine the testator’s intent when construing an unambiguous will, the Court concluded that the bar against the reformation of wills is not justified, in light of the evolution of the law of probate and modern theories of interpretation of writings.
The Court concluded that a change in the law is warranted to allow the reformation of an unambiguous will. After all, courts currently consider extrinsic evidence to determine whether a will was signed with formalities, or when a will is ambiguous. This law change permitting extrinsic evidence (provided it is clear and convincing) to be introduced to establish mistake and probable intent ensures that the principles applicable to wills and those applicable to trusts, where reformation is permitted by statute, are consistently applied. By requiring the evidence be clear and convincing, the probable intent of the testator is adequately protected.
Finally, the Court concluded that the present case was an appropriate case for changing the law regarding the remedy of reformation. First, it was unlikely that, at the time of drafting his will, Duke only wished to address the disposition of his property should he predecease his wife or if they both died in a common disaster. Moreover, reformation in this case, so long as the evidence establishes probable intent by clear and convincing evidence, would avoid unjust enrichment of Duke’s statutory heirs-at-law.