Make No Mistake—estate of Duke Allows Reformation of Unambiguous Wills

• Publication year: 2015
• Author: By Jeffrey Loew, Esq. and Steve Braccini, Esq.

MAKE NO MISTAKE—ESTATE OF DUKE ALLOWS REFORMATION OF UNAMBIGUOUS WILLS

By Jeffrey Loew, Esq.^* and Steve Braccini, Esq.^**

I. INTRODUCTION

Traditionally, absent the allegation of an ambiguity requiring clarification, California courts have been reluctant to admit extrinsic evidence to interpret a will under the theory that such admission undermines the principle that the words of the testamentary instrument itself must be given the greatest deference wherever possible. But this restriction, often referred to as the "four corners" rule, has now been discarded in cases where the testator is alleged to have made a mistake in executing the document.

Indeed, on July 27, 2015, in a unanimous opinion in Estate of Irving Duke, the California Supreme Court reversed decades of precedent and held that "an unambiguous will may be reformed to conform to [a] 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 [a] testator's actual specific intent at the time the will was drafted."¹ In reaching its decision, the Court abrogated the rule established in 1965 under Estate of Barnes that prohibited courts from considering evidence outside the four corners of a will in order to correct a drafting mistake.²

Chief Justice Cantil-Sakauye, the author of the opinion in Duke, noted that the current regime of allowing reformation for trusts, but not wills, "appears to favor those with the means to establish estate plans that avoid probate proceedings, and to deny a remedy with respect to the estates of individuals who effect their plans through traditional testamentary documents."³ She recognized that, "[d]enying reformation in these circumstances seems particularly harsh with respect to individuals who write wills without the assistance of counsel, and are more likely to overlook flaws in the expression of their intent."⁴ Accordingly, the Court held that reformation of an unambiguous will in these circumstances should be allowed in order to avoid unjustly enriching those who would otherwise inherit as a result of a mistake.⁵

While providing historical context, this article further examines the Court's reasoning announced in Duke, while analyzing the practical and policy implications of the decision.

II. THE LAW BEFORE ESTATE OF DUKE

Probate practitioners often cite "[t]he cardinal rule in the construction of wills is the ascertainment of the testator's intent."⁶ Indeed, in construing testamentary instruments, "the duty of [a] court is to first ascertain and then, if possible, give effect to the intent of the maker."⁷ In California, historically, extrinsic evidence was allowed to ascertain a testator's intent only where either a patent or latent ambiguity exists.⁸

A. Ambiguities

An ambiguity arises when the language of an instrument may be applied in more than one way.⁹ Ambiguities are either patent or latent.¹⁰

1. Patent Ambiguities

A patent ambiguity is an uncertainty that appears on the face of the instrument.¹¹ In other words, if a provision in an instrument is susceptible to one of two constructions on its face, it is patently ambiguous.¹²

2. Latent Ambiguities

A latent ambiguity is one that is not apparent on the face of the instrument, but is disclosed by some fact collateral to it.¹³ Thus, a latent ambiguity exists where it is not the words used that cause doubt and uncertainty, but the ascertainment of an intended beneficiary from the words used.¹⁴ Two classes of latent ambiguities exist: (1) where there are two or more persons or things that exactly measure up to the descriptions and conditions of the instrument; and (2) where no person or thing exactly answers the declarations and descriptions of the instrument, but where two or more persons or things in part (though imperfectly) do so answer.¹⁵

3. Extrinsic Evidence May Be Used To Clarify Any Type Of Ambiguity

In matters involving wills, the admission of extrinsic evidence is addressed in Probate Code section 6111.5, which provides as follows (with emphasis added): "Extrinsic evidence is admissible. . .to determine the meaning of a will or a portion of a will if the meaning is unclear."¹⁶

Extrinsic evidence is therefore admissible to resolve any ambiguity—whether patent or latent—in order to ascertain an intended beneficiary.¹⁷ However, under the law prior to Estate of Duke, a court could not invoke extrinsic evidence to write a new or different instrument.¹⁸

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B. The Prohibition of Estate of Barnes

While extrinsic evidence is liberally allowed to resolve ambiguities, it traditionally has not been allowed to correct mistakes in unambiguous wills. This tradition existed despite the plain language of Probate Code section 21102(c), which provides:

Nothing in this section limits the use of extrinsic evidence, to the extent otherwise authorized by law, to determine the intention of the transferor.¹⁹

The prohibition against using extrinsic evidence to reform unambiguous wills was established in Estate of Barnes.²⁰ In Barnes, the testatrix's unambiguous will provided that all of her property was to go to her husband, and if she and her husband died simultaneously or within two weeks of each other, her entire estate was to go to her nephew.²¹ While the testatrix's husband did predecease her, the testatrix died thirteen years after executing her will. At the time of her death, she had various heirs at law, not just her nephew.²² The trial court found the will ambiguous (since it did not provide for a disposition of the testatrix's estate if the testatrix survived her husband by more than two years), admitted extrinsic evidence, and construed it in favor of the nephew.²³ The California Supreme Court reversed the trial court's judgment, stating that the extrinsic evidence concerning the nephew's relationship with the testatrix did not assist in interpreting the will, and did not reflect any "dominant dispositive plan" to find a gift to the nephew by implication.²⁴ And, in one summary sentence, it also found no basis for implying a gift: "No such 'dominant dispositive plan' as referred to and held to warrant a gift by implication in [Brock v. Hall (1949) 33 Cal.2d 885, 892, 206 P.2d 360, A.L.R.2d 672], cited by petitioner, is demonstrated by the provisions of the will now before us."²⁵ Therefore, the California Supreme Court held that the testatrix's estate was to pass by the laws of intestacy to her heirs at law, and not to her nephew.

As the California Supreme Court has previously observed, when a court does not consider certain extrinsic evidence (such as in the context of dictionary definitions) on the ground that the meaning of written words is plain and clear, the court's decision is formed by, and based upon, the extrinsic evidence of the judge's own personal education and experience.²⁶ Words of an instrument are to be taken in their ordinary and grammatical sense.²⁷

C. The New Trend In California: The Liberalization of The Admission of Extrinsic Evidence

Notwithstanding Barnes, the trend in California has been "to allow the introduction of extrinsic evidence to show the testator's understanding of the words used in the will even though there is no obvious ambiguity or the evidence might seem at first blush to contradict the language of the will."²⁸ Indeed, the Restatement Third of Property (Wills & Donative Transfers), as published in 2003, embraced, in section 12.1, the idea that unambiguous donative documents may be reformed to reflect the testator's true intent:

A donative document, though unambiguous, may be reformed to conform the text to the donor's intention if it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor's intention was. In determining whether these elements have been established by clear and convincing evidence, direct evidence of intention contradicting the plain meaning of the text as well as other evidence of intention may be considered.²⁹

Indeed, this Restatement section "unifies the law of wills and will substitutes by applying to wills the standards that govern other donative documents," as "[e]quity has long recognized that deeds of gift, inter vivos trusts, life-insurance contracts, and other donative documents can be reformed."³⁰ The Restatement commentators argue that a "clear and convincing" evidence standard sufficiently protects against potential abuses.³¹ This trend has now been continued, if not cemented, by the California Supreme Court in Estate of Duke.³²

III. ESTATE OF DUKE

A. Facts And Procedural Background

Irving Duke prepared a holographic will in which he left all of his property to his wife.³³ He provided that should he and his wife die simultaneously, his estate was to be equally divided between the City of Hope (COH) and the Jewish National Fund (JNF).³⁴ His wife, however, predeceased him, and he did not change his will.³⁵ When Irving died, he left no spouse or children.³⁶ Following his death, COH and JNF petitioned for probate and for letters of administration.³⁷ His nephews (the sons of his predeceased sister) filed a petition for determination of entitlement to estate distribution.³⁸ The nephews then moved for summary judgment, asserted that the estate must pass to them as Irving's closest surviving intestate heirs because there was no provision in the will for disposition of the estate in the event that Irving survived his wife.³⁹

The (Los Angeles County) Probate Court concluded that the will was not ambiguous, and on that ground, it declined to consider extrinsic evidence of Irving's intent, and therefore, it granted summary judgment in favor of the nephews.⁴⁰

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The (Second District) Court of Appeal affirmed, based on the California Supreme Court's opinion in Estate of Barnes.⁴¹ Specifically, the Court of Appeal reasoned that the will was similar to the will in Barnes, ...