California Recognizes Evidence Extrinsic to Wills

By John O'Grady, O'Grady Law Group

will-estatesFor many years, California courts have prevented heirs from contesting a will based on extrinsic evidence such as letters, handwritten notes and other unofficial documents not included in the estate plan. But last month, the California Supreme Court overturned these cases. Irving Duke’s handwritten will provided that when he died, his wife would inherit his estate, and if the couple died together his assets would be distributed to various charities. It failed to specify who would inherit his estate if his wife died first—which is exactly what happened.

When Duke died in 2007, two of Duke’s favored charities claimed that he’d intended them to get his assets because his wife was already deceased—even though this contingency was not clearly spelled out in his will. Duke’s two surviving nephews filed a petition claiming themselves sole heirs. The Court concluded “that the categorical bar on reformation of wills is not justified, and…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.” The probate court will now determine whether there is such clear and convincing evidence in this case.

Duke could have prevented all this chaos by having a professional estate planning attorney prepare the will instead of writing it himself. Anyone who takes the financial shortcut of writing their own will, whether on paper or using an online template, risks making such grievous mistakes. When people don’t pay a lawyer to prepare their will, their heirs often wind up paying for it many times over in court fees and even lost inheritance. So have a professional prepare your estate plan according to your express wishes and there won’t be anything for anyone to fight over. Estate of Irving Duke v. Jewish National Fund, ___ Cal 4th ___ Case No. S199435 (7/27/2015).

About the author
John O‘Grady, O’Grady Law Group, was the 2012 chair of BASF’s Estate Planning, Trust & Probate Section.