Things don’t always go the way we expect them to, either in life or in death.  It is, therefore, important that a person’s trust or will have good contingency planning provisions in place to address future changes in circumstances which might possibly occur.  If not, under new case law one can expect litigation by competing beneficiaries when things do not turn out as expected and the will does not address the unforeseen circumstances.

Let’s consider the California Supreme Court’s recent landmark decision in Estate of Duke (July 27, 2015).  In Estate of Duke, the decedent’s handwritten will failed to contemplate the possibility that the testator, Irving Duke, would outlive his younger wife by 14 years.  In his will, Irving Duke left his estate to his wife, if she survived him and otherwise, should they both die in a common accident, left his estate to two charities.  The same will also expressly disinherited his heirs.  As it turned out, Irving Duke outlived his younger wife by 5 years.

Because the husband’s will did not expressly say what distribution would be made if he outlived his wife, Irving Duke’s nephews petitioned to distribute his estate pursuant to the Laws of Intestacy, i.e., as if he died without a will, as they were his surviving heirs.  The charities disputed the nephews’ claim saying that the decedent clearly intended for the charities to inherit, “if the decedent were not survived by his wife” regardless of whether the wife died before, or at the same time as, Irving Duke.

The dispute went up to California’s Supreme Court which held that the decedent’s will could be reformed if there was “clear and convincing evidence of a mistake” and of the decedent’s “actual and specific intent” (at the time the will was drafted) regarding the distribution of his estate.  The Estate of Duke decision represents a change in California’s longstanding opposition to reforming wills.

Till the California Supreme Court’s decision in Estate of Duke, California had followed the 1965 California Supreme Court decision in Estate of Barnes, which the appellate court in Estate of Duke relied on to support its decision to exclude extrinsic evidence to reform the will.  Thus, for many years California has only allowed for so-called extrinsic evidence, i.e., other than the will itself, to be used when the terms of a will were ambiguous and the extrinsic evidence was needed to clarify the ambiguity.

Clearly the husband’s handwritten will in Estate of Duke was poorly drafted as it should have contemplated the possibility of the younger wife predeceasing her husband regardless of their 14 year difference in age.  Whatever money the husband saved in attorney fees by handwriting his own will was nothing when compared to the money that was spent by the charities and his nephews in legal fees disputing the erroneously drafted will.