California's Statutory Will Needs an Update to Keep Up With Duke

• Jurisdiction: California,United States
• Author: By Anne M. Rudolph and Ralph E. Hughes
• Publication year: 2020
• Citation: Vol. 26 No. 2

CALIFORNIA'S STATUTORY WILL NEEDS AN UPDATE TO KEEP UP WITH DUKE

By Anne M. Rudolph and Ralph E. Hughes^*

MCLE Article

I. SYNOPSIS

California's Statutory Will¹ needs to be updated. The current California Statutory Will form became law in 1991, when Pete Wilson was governor of California and Nirvana came out with "Smells Like Teen Spirit." In those days, any potential reformation of a will in California was governed by Estate of Barnes.² In Estate of Barnes, California's Supreme Court affirmed the established rule that extrinsic evidence could not be used to reform a will that was unambiguous on its face.

Not surprisingly, the California Statutory Will form enacted in 1991 reflected the rigidity of Estate of Barnes. The form repeatedly instructs the user that failure to complete the form correctly result inexorably in intestate distribution, without room for interpretation or correction. An important example of the Statutory Will form's rigidity can be found in its provision for distribution of the residue of the testator's estate, often the largest part of the estate. Paragraph 5 of the Statutory Will form (a portion of Probate Code section 6240) provides that if a testator fails to sign a box next to the name of the person designated to receive the residuary gift, the gift passes by intestacy.

Paragraph 5 of the form, governing distribution of the residue, is set forth below. Assume that Sally Smith, who is not familiar with filling out the boxes in legal forms, were to complete her Statutory Will form as follows:

1. Balance of My Assets. Except for the specific gifts made in paragraphs 2, 3 and 4 above, I give the balance of my assets as follows:

(Select one choice only and sign in the box after your choice. If I sign in more than one box or if I do not sign in any box, the court will distribute my assets as if I did not make a Will.)
(Emphasis added; the form itself does not highlight this language.)
a. Choice One: All to my spouse or domestic partner, registered with the California Secretary of State, if my spouse or domestic partner, registered with the California Secretary of State, survives me; otherwise to my descendants (my children and the descendants of my children) who survive me.
b. Choice Two: Nothing to my spouse or domestic partner, registered with the California Secretaryof State; all to my descendants (my children and the descendants of my children) who survive me.
c. Choice Three: All to the following person if he or she survives me (Insert the name of the person.):
____________________
d. Choice Four: Equally among the following persons who survive me (Insert the names of two or more persons.):
Juanita Chavez, Sam Smith, and Priscilla Jones

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In this example, Sally filled in the names of the individuals who she wished to receive the residue of her estate, but did not sign her name in the box. Under the express terms of Probate Code section 6240 (the form is itself a statute), the residue of Sally's estate must pass by intestacy and not to the persons Sally designated. There is no ambiguity, and no room for reformation. The law requires intestate distribution, and Sally's intent is not relevant.

When Estate of Barnes was the rule in California, this rigidity perhaps made sense. However, the California Supreme Court has decided Estate of Duke,³ which overruled Estate of Barnes and held that extrinsic evidence can be used to reform even an unambiguous will.

Under Estate of Duke, if a lawyer drafts an unambiguous but mistaken will, the will can 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."⁴ However, if a layperson executes an unambiguous but mistaken Statutory Will, the will cannot be reformed, and the testator's gift goes by intestacy.

This inconsistency which works to the disadvantage of the ordinary consumer who believes that use of the Statutory Will form provides legal support for his or her estate plan, should be remedied.

II. THE PROBLEM DISCUSSED IN THIS ARTICLE—MISTAKEN COMPLETION OF THE STATUTORY WILL FORM—IS REAL, AND IS NOT SMALL A. The Problem is Real

Any lawyer who has struggled to fill in the boxes on a Judicial Council form knows that it is difficult to complete a box-laden form correctly. Inadvertent mistakes are common. It is...