Unambiguous Will May Be Reformed By Court If Intent Is Clear

By Robert J. Lanzone

Historically under California law, extrinsic evidence has been held to be inadmissible to reform an otherwise unambiguous Will.  Extrinsic evidence, for example, would be testimony by potential beneficiary, or a letter or email of the decedent.  The court would not look beyond the words written in the Will.  This has been the law for over a century.  New to California, the Supreme Court, following a discussion of the evolution of probate law since 1872, found that categorical banning of extrinsic evidence was unjustified.  As such, it held a Will could be reformed, or clarified, if there was clear and convincing extrinsic evidence to do so.

In Estate of Duke (2015) 61 Cal.4th 871, the Will was made by Irving Duke, and he was 72 at time the Will was executed.  As written, it assumed his wife, Beatrice, then 58, would survive him.  If both were to die together (e.g., in a plane crash), the estate went to charity.  The Will did not speak to Beatrice dying first, which is what happened.  Irving and Beatrice had no children.  Irving’s nephews challenged the estate and asked that the Will be reformed and the estate go to them.  They testified in the trial court that they had a good, close relationship with their uncle for many years.  He just never changed his original Will.

The charity beneficiaries had prevailed in the appellate court based on historic California law, excluding extrinsic evidence.  The Supreme Court reversed and remanded the case.

In the future, the Duke case will be cited as precedent for any challenge to an otherwise clear and unambiguous Will.  This ruling can no doubt be extended to any challenge to a Revocable Living Trust.  It is not clear whether a “No Contest” clause in a Will, or Trust, will be sufficient to prevent such a challenge.

It will be more important now than it was pre-Duke, to have the intent of the maker of the Will or Trust very clear.  This would especially be true where a potential heir is disinherited or given a lesser share of an estate.  In such instances, a video tape at the time a Will or Trust is executed would be very good evidence of the maker’s intent.

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