New California Case – An Unambiguous Will With A Mistake Can Be Reformed With Clear And Convincing Evidence – Estate of Duke

In re the Estate of Irving Duke
California Supreme Court, Case No: S199435, July 27, 2015

In Estate of Irving Duke the California Supreme Court has held that an unambiguous will with a mistake may be reformed if (1) clear and convincing evidence establishes that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and (2) clear and convincing evidence also establishes the testator’s actual specific intent at the time the will was drafted.

On the one hand, Duke is a good decision as cases have already held that the intent of the testator should prevail, which is a position with which I agree. On the other hand, the Court jumps through some hoops which could result in different standards or criteria for wills compared to trusts, and different standards or criteria for remedying mistakes compared to ambiguities. See, for example, the quotes below from the Court’s decision. The fact is that after over a century of will and trust case law, in addition to old, revised and new California Probate Code statutes, we continue to have in probate law a large body of legal authorities that variously apply differently in different situations and that can contradict. See, for example, my prior blog posts discussing undue influence case law and how the standards are or might be different in the circumstance of a will (or at least a “simple” will) compared to a trust.

The following are some of the interesting quotes from the Court in Estate of Duke.

“In cases in which clear and convincing evidence establishes both a mistake in the drafting of the will and the testator’s actual and specific intent at the time the will was drafted, it is plain that denying reformation would defeat the testator’s intent and result in unjust enrichment of unintended beneficiaries. Given that the paramount concern in construing a will is to determine the subjective intent of the testator ( Estate of Russell, supra, 69 Cal.2d at p. 205; 4 Page on Wills (Bowe-Parker rev. 2004) § 30.1, p. 2), only significant countervailing considerations can justify a rule categorically denying reformation.”

“Fourth, the Radins assert that allowing reformation will result in a significant increase in probate litigation and expenses. Claimants have long been entitled, however, to present extrinsic evidence to establish that a will is ambiguous despite the fact that it appears to be unambiguous. ( Estate of Russell, supra, 69 Cal.2d at pp. 206-213.) Therefore, probate courts already receive extrinsic evidence of testator intent from claimants attempting to reform a will through the doctrine of ambiguity. (Cf. Buss v. Superior Court (1997) 16 Cal.4th 35, 57 [in rejecting the contention that requiring only a preponderance of the evidence to establish an insurer’s right to reimbursement will open the floodgates of litigation, the court noted that “the ‘floodgates’ have been open for quite some time”].) The task of deciding whether the evidence establishes by clear and convincing evidence that a mistake was made in the drafting of the will is a relatively small additional burden, because the court is already evaluating the evidence’s probative value to determine the existence of an ambiguity. FN:13 To the extent additional claims are made that are based on a theory of mistake rather than a theory of ambiguity, the heightened evidentiary standard will help the probate court to filter out weak claims. Finally, fear of additional judicial 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. (See Buss, at p. 58 [acknowledging that the future might bring more claims for reimbursement, “[b]ut the possible invocation of this right — or any other — is not a sufficient basis for its abrogation or disapproval”]; Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171 [rejecting a proposed limit on the circumstances in which negligent infliction of emotional distress may be established, despite claim of ” ‘infinite liability’ “].)”

“Fifth, the Radins discount justifications for allowing reformation in appropriate circumstances. They assert that Probate Code section 6110, subdivision (c)(2), which allows the probate of a will that was not executed in compliance with statutory attestation requirements if clear and convincing evidence establishes that the testator intended the writing to be a will, was not intended to lessen required formalities. Although section 6110 does not reduce the formalities of attestation, it reflects a judgment that the formalities should not be allowed to defeat the testator’s intent when clear and convincing evidence satisfies the evidentiary concerns underlying the formalities of the statute of wills.”

Dave Tate, Esq. (San Francisco / California)