Overview: Sometimes trying to fix a problem, when you have no particular expertise in that field, leads you to more trouble than what you originally faced. Doing your own brain surgery comes to mind, as does writing your own estate plan. Here’s a story about a man who didn’t heed this warning, and the outcome of his not-quite-right drafting work….
California and Nevada law regarding the validity and probating of wills share several common traits. Both states permit valid holographic wills written and signed by the testator to be admitted to probate. Both of course allow more formal wills to also be admitted to probate, so long as those documents are witnessed by two disinterested persons (and again absent problems such as the testator lacking capacity, etc.). The probate processes in the two states are similar, and have become more so during the 22 years since I was admitted to the Nevada bar.
In the past few years, however, California courts have created some new and different legal guidelines involving the probate of certain wills. I want to briefly discuss a couple of these developments for you here.
Most of us recall the “four corners” rule of contract law regarding the interpretation of unambiguous documents. If the document’s language and intent is clear on its face (e.g. it has no patent or latent ambiguities), parties could not offer evidence to support a different interpretation. That has also been the legal rule applicable to wills since long before my legal career began. Now? In California? Not so fast.
In Estate of Duke (2015) 61 Cal.4th 871, the California Supreme Court was asked to rule on a case involving a holographic will. No surprise that a will of this type would create controversy (don’t they all?), but the dispute here wasn’t really over what the will language said, but rather what it should have said. Let me explain.
Mr. Duke provided in his will that his entire estate would go to his wife if she survived him. However, if they died simultaneously, his assets passed equally to two charities. Of course, Mrs. Duke then predeceased him, and he didn’t revise the will, thereafter dying without children and starting the legal rollercoaster ride. Mr. Duke’s nephews, his next of kin, pursued action in probate court to be determined as the rightful heirs to his estate, arguing that the charities only took under the will in the situation where the Dukes died simultaneously. Since they did not, and since the will didn’t provide an alternative distribution plan for Mr. Duke being the surviving spouse, California intestacy law then gave the estate to the nephews. The probate court agreed. Clear intent based on the language used in the document, right?
The Second District Court of Appeal also agreed. Although the California Probate Code, at Section 21102(c), does allow for extrinsic evidence to determine a transferor’s (applying both to wills and trusts) intent, the California Supreme Court had previously ruled in Estate of Barnes (1965) 63 Cal.2d 580 – in another case involving a holographic will with incomplete distribution terms that resulted in the estate passing by intestacy – that extrinsic evidence wasn’t admissible to supply any “missing” intent. In Barnes the court’s analysis centered on the lack of a “dominant dispositive plan” in the will evidencing the testator’s intent being different than what intestacy provided. The Court of Appeals in Duke invited the Supreme Court to revisit Barnes, but on its own could not distinguish that holding to reach a different result due to stare decisis.
The Supreme Court could and did. In sum, it held that extrinsic evidence could be introduced to reform an unambiguous will if there was (1) clear and convincing evidence that the testator’s intent was mistakenly expressed and (2) that the same evidence also established the testator’s actual and specific intent at the time of drafting (and presumably execution). As a side note I’m not sure that Mr. Duke’s intent was mistakenly expressed so much as it was simply not expressed, as to the situation where he outlived his wife. He could have used a lawyer peppering him with “what if” questions and saved a lot of money and time in the ultimate probate.
The issue of a testator’s intent has also been the subject of another line of recent appellate cases in California probate, all relating to the legal doctrine of “harmless error” as applied to wills. Probate Code 6110(c)(2) provides a statutory basis for applying this doctrine in California probate cases, but only with respect to the limited issue of defective will executions. If a court finds that a will’s execution doesn’t fully comply with the Probate Code requirements, but also finds that the non-compliance isn’t material, the will can still be admitted to probate.
Notwithstanding that statutory limit on the doctrine’s use, several appellate cases in the past few years have applied the concept to other aspects in probate, including supporting defective revocations and validating alterations/amendments to the underlying original document. These applications of harmless error are permitted under the Uniform Probate Code section from which Section 6110 was drawn, but the California Legislature hasn’t adopted those provisions. That has apparently not deterred the courts from using this tool to reach the desired result on multiple occasions. Several of the cases applying the doctrine are unpublished and thus not officially citable as precedent, so I won’t go into detail about their specific facts here, but as a group they seem to indicate a trend toward disregarding strict adherence to procedural formalities – for which probate is (in)famous -to achieve equitable results. In California there is no shortage of cases reminding us that probate is guided by equity, so perhaps this isn’t a surprising trend.
Taken together, Estate of Duke and the “harmless error” cases suggest that parties interested in challenging a testator’s estate plan, especially a “do it yourself” document, have new arguments to pursue and advocate if they can marshal evidence casting doubt on the testator’s stated intent. With the growth of “do it yourself” planning involving revocable trusts, we should expect the next frontier to be the expansion of these theories to attack or question the distribution provisions in California trusts. Stay tuned.
Kelley R. Carroll is an attorney practicing in California and Nevada, and is a principal in the Porter Simon law firm located in Truckee, with offices in Reno and Tahoe City. Kelley is a certified specialist in the areas of estate planning, trust and probate law (California Board of Legal Specialization). He may be reached at firstname.lastname@example.org or at the firm’s web site www.portersimon.com.
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The content contained and opinions expressed in this blog are solely those of the author. This blog contains content and opinions concerning the law generally, and is not intended to constitute legal advice or to create any attorney‑client relationship with the reader. The reader should consult with an attorney about any specific legal issues prior to embarking on any course of action or inaction involving legal matters.