A last will and testament is supposed to express your wishes regarding the disposition of your estate. But sometimes a will is not clear about a testator’s wishes. If there is ambiguity in the language of a will, a California probate court may look to “extrinsic” evidence-facts or information outside the text of the will itself-in determining what the testator really meant.
That said, a court should not rewrite a person’s will to mean something it doesn’t actually say. For that reason, the California Supreme Court held in 1965 probate judges may not consider extrinsic evidence when interpreting an unambiguous will. In that case, Estate of Barnes, the testator’s will provided for the distribution of her estate to her husband, but he predeceased her. The will made no provision for such a scenario, and the Supreme Court said the probate court could not consider extrinsic evidence to ascertain the testator’s intent.
The Supreme Court Alters Course
But in a landmark July 27 opinion, the Supreme Court unanimously modified its 50-year-old Barnes decision and held there were circumstances where a court may consider extrinsic evidence to interpret an unambiguous will. Specifically, the Court said there may be cases where judicial “reformation” of a will is justified to correct a drafting error by the testator.
The testator in this case was a 95-year-old man who died in 2007. Twenty-three years earlier, he drafted a holographic (handwritten) will naming his wife as the beneficiary of almost his entire estate (he left his brother $1.00). The will further stated if “my wife…and I die at the same moment,” his estate would be divided equally between two charities. The will also named his wife as executor.
The wife died in 2002, five years before her husband’s death. He never updated the will to account for his wife’s passing. After his death, the Los Angeles County public administrator located the will in the testator’s safe deposit box. The two charities then filed a petition to probate the will, claiming they were entitled to the proceeds of the estate. The testator’s two closest living heirs, his nephews, claimed they should inherit the estate. Although they agreed the will was valid, the nephews argued it made no provision for any contingency beyond either (1) the testator’s wife surviving him or (2) the testator and his wife dying “at the same moment.” Therefore the estate should pass under intestacy law to them.
The probate court and the California Court of Appeal rejected the charities’ efforts to introduce evidence that the testator always intended for them to inherit his estate should his wife die before him. They argued “his intent was inartfully expressed in his will,” and the court should rectify what amounts to a drafting mistake. The lower courts, holding to the Supreme Court’s Barnes decision, said that was not possible.
But the Supreme Court decided Barnes was no longer valid. Without ruling on the merits of the charities’ claims, Chief Justice Tani Cantil-Sakauye said on behalf of the Supreme Court, “We hold that 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 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.” In other words, if the charities can prove the testator always intended for them to benefit from his estate, regardless of when his wife predeceased him, they can still inherit from the estate.
No Substitute for Good Estate Planning
The Chief Justice was careful to note the Court’s decision should not introduce any “uncertainty” into the estate planning process. To the contrary, a well-drafted will is always the best way to discourage costly and unnecessary litigation over a testator’s intentions. The Court’s decision only provides a means of correcting a drafting error where the evidence otherwise proves the testator’s intentions. But the best way to avoid such errors in the first place is to work with an experienced California estate planning attorney. Contact the Law Office of Scott C. Soady in San Diego to speak with an attorney today.