The California Supreme Court ruled in Estate of Duke (2015) 2015 Cal.Lexis 5119, that a will may be reformed if clear and convincing extrinsic evidence shows a mistake in the expression of the testator’s intent, even if there is no ambiguity in the instrument. This is a pretty significant change from existing law, which barred admission of extrinsic evidence if there was no ambiguity in the instrument. The Supreme Court said “the categorical bar on reformation of wills is not justified.” Does this mean that the “floodgates of litigation” will be opened now that any document can be challenged? The Supreme Court didn’t think so, and in any event said “fear of additional burdens is not an adequate reason to deny relief that would serve the paramount purpose of distributing property in accordance with the testator’s intent.”
The story starts in 1984 with Irving Duke’s holographic will. He left his estate to his wife Beatrice, and in the event that he and Beatrice died “at the same moment,” then his estate was to be distributed equally to the City of Hope and the Jewish National Fund. The will said nothing about what was to happen if Beatrice died before Irving.
“An unambiguous will may be reformed to conform to the testator’s intent if clear and convincing evidence establishes that the will contains a mistake in he testator’s expression of intent at the time the will was drafted, and also establishes the testator’s actual specific intent at the time the will was drafted.”
So guess what happened? Beatrice died in 2002. Five years later, in 2007, Irving died, having not changed his will. He was not married and had no children. City of Hope and the Jewish National Fund petitioned for probate of Iriving’s will. Irving’s nephews filed a petition to determine entitlement to the estate. They argued that the will called for the gifts to the charities only in the event that Irving and Beatrice died simultaneously, and since that didn’t happen, the charities get nothing. They also argued that because the will was silent on what happens if Irving outlives Beatrice, Irving’ s estate goes to his intestate heirs, (i.e., the nephews).
The charities were not giving up so easily. They sought to introduce evidence that Irving intended that his estate go to the charities in the event that he outlived his wife, and that he did not intend his estate to go to his intestate heirs. They argued that Irving’s failure to provide for disposition of his estate in this event was a mistake, and that the will should be reformed to comport with what the evidence showed was his intent.
The trial court had none of this. They ruled that the will was unambiguous (and, by implication, that the failure to provide for a disposition in the event Irving outlived Beatrice did not create an ambiguity), and that California law is clear that extrinsic evidence is not allowed to show the testator’s intent when the will is unambiguous. The charities appealed, and the court of appeals affirmed the trial court, but noted that “[i]t is difficult to imagine that after leaving specific gifts to the charities in the names and memories of beloved family members, Irving intended them to take effect only in the event that he and his wife died ‘at the same moment.'” Nevertheless, the court of appeal ruled that since the will itself was unambiguous, extrinsic evidence could not be considered.
The California Supreme Court reversed the court of appeals, and held that it was now time to change the law and allow the consideration of extrinsic evidence of the testator’s intent to reform a mistake in a will even if the will was unambiguous. The court held that a will that is unambiguous “may be reformed to conform to the testator’s intent if clear and convincing evidence establishes that the will contains a mistake in the testator’s expression of intent at the time the will was drafted, and also establishes the testator’s actual specific intent at the time the will was drafted.”
Clear and convincing evidence is a hefty burden of proof. While there may very well be more litigation that takes advantage of this law, or at least more people meeting with lawyers to see if they have a case, the high burden of proof needed to reform an unambiguous will may very well serve to slow those floodgates.