18 March 2019 - Article
A homemade handwritten will. No witnesses. An estate potentially going to charity over family members. The probate litigation trifecta? Or an opportunity for the California Supreme Court to do the right thing?
In 1984, Irving Duke prepared a handwritten, unwitnessed will (a 'holographic' will, which is valid in California and some other states under certain circumstances) that left all of his property to his wife, Beatrice Duke. He left his brother, Harry Duke, 'the sum of One dollar.'
The will further provided that '[s]hould my wife … and I die at the same moment, my estate is to be equally divided — One-half is to be donated to the City of Hope in the name and loving memory of my sister, Mrs. Rose Duke Radin. One-half is to be donated to the Jewish National Fund to plant trees in Israel in the names and loving memory of my mother and father — Bessie and Isaac Duke.' The Will further provided that Irving 'intentionally omitted all other persons, whether heirs or otherwise, who are not specifically mentioned herein….'
The will did not say what was to happen if Beatrice predeceased Irving which was in fact what happened. Beatrice died in 2002. Irving died in 2007 leaving no spouse or children.
In March 2008, the Jewish National Fund and the City of Hope (together, the 'Charities') claimed they were entitled to the estate. Six months later, the Radins (Irving's nephews) claimed they were entitled to the estate as Irving's sole intestate heirs.
JUDGEMENT AT FIRST INSTANCE AND ON APPEAL
At first instance, the Charities adduced extrinsic evidence to prove that Irving intended the will to benefit the Charities in the event Beatrice predeceased him. However, the first instance court determined the will was not ambiguous and therefore declined to consider extrinsic evidence of Irving's intent (the position would be similar in England). Irving's estate therefore passed to the Radins on intestacy.
The California Court of Appeal upheld the judgment. However, it seemed troubled by the result:
'We are mindful of the fact that the ultimate disposition of Irving's property, seemingly appropriate when strictly examining only the language of his will, does not appear to comport with his testamentary intent. It is clear that he meant to dispose of his estate through his bequests, first to his wife and, should she predecease him, then to the charities. It 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.'
The California Court of Appeal's judgment concludes with a plea of sorts: 'Perhaps it is time for our Supreme Court to consider whether there are cases where deeds speak louder than words when evaluating an individual's testamentary intent.'
THE CALIFORNIA SUPREME COURT'S JUDGMENT
The California Supreme Court reversed the decision. It held that an unambiguous will may be reformed if '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 also establishes the testator's actual specific intent at the time the will was drafted.'
Two principal reasons justified the California Supreme Court's decision.
Firstly, the California Probate Code does not preclude the judicial development of principles as to the admissibility of extrinsic evidence. A well-known case in California along these lines is Estate of Russell.
In Russell, Thelma Russell left a valid handwritten will leaving 'everything I own real & personal to Chester H. Quinn and & Roxy Russell'. There was some confusion as to who Roxy was so extrinsic evidence was considered. It turned out that Roxy was the testatrix's Airedale dog who had predeceased her. After Mr Quinn and the testatrix's niece fought (like dogs) all the way to the California Supreme Court, Roxy's share ultimately passed on intestacy but not before the courts enlarged the role extrinsic evidence can play in probate disputes.
Secondly, there is a long history of California courts admitting extrinsic evidence in order to correct drafting errors, determine whether a document was intended to be a will, and even to construe wills in a manner that amounts to wholesale reformation (not dissimilar to the English position in Marley v Rawlings).
The California Supreme Court acknowledged the evidential concerns presented where the principal witness is dead. However, in order to address such concerns, the court imposed a burden of proof by clear and convincing evidence, rather than the normal balance of probabilities standard.
Therefore, the California Supreme Court sent the case back to the trial court to consider whether the extrinsic evidence constitutes clear and convincing evidence that Irving intended his estate to pass to the Charities in the event Beatrice predeceased him.
The key to the judgment seems to be that, where clear and convincing evidence establishes not only a mistake in drafting but also the testator's intent, 'denying reformation would defeat the testator's intent and result in unjust enrichment of unintended beneficiaries'. Also, courts must construe wills 'according to the intention of the testator and to avoid intestacy'.
This must be the case and the California Supreme Court seems to have done the right thing. Whether the Charities can establish their claim remains to be seen, but it would seem rather unlikely that Irving intended, by his homemade handwritten will, for the named Charities to lose out entirely should his wife predecease him rather than die simultaneously.
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