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Estate of Duke

Supreme Court of California

July 27, 2015

Estate of IRVING DUKE, Deceased. SEYMOUR RADIN et al., Petitioners and Respondents,
JEWISH NATIONAL FUND et al., Claimants and Appellants

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Superior Court of Los Angeles County, No. BP108971, Mitchell L. Beckloff, Judge. Court of Appeal, Second Appellate District, Division Four, No. B227954.

Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, Susan Cooley; Rodriguez, Horii, Choi & Cafferata, Reynolds Cafferata; Benedon & Serlin, Gerald Serlin, Douglas Benedon; Greines, Martin, Stein & Richland, Robin Meadow, Robert A. Olson and Jeffrey E. Raskin for Claimants and Appellants.

Sacks, Glazier, Franklin & Lodise, Margaret Lodise; Snell & Wilmer, Haynes and Boone and Mary-Christine Sungaila for Petitioners and Respondents.

Opinion by Cantil-Sakauye, C. J., with Werdegar, Chin, Corrigan, Liu, Cué llar, and Kruger, JJ., concurring.


[190 Cal.Rptr.3d 297] [352 P.3d 865] CANTIL-SAKAUYE, C. J.

Irving Duke prepared a holographic will providing that, upon his death, his wife would inherit his estate and that if he and his wife died at the same time, specific charities would inherit his estate. The handwritten will, however, contained no provision addressing the disposition of his estate if, as occurred here, he lived longer than his wife. The specified charities contend that at the time the testator wrote his will, he specifically intended to provide in his will that the charities would inherit his estate in the event his wife was not alive when he died. The courts below excluded extrinsic evidence of the testator's intent, finding that the will was unambiguous and failed to provide for the circumstance in which his wife predeceased him. Therefore, finding that Duke died intestate, the court entered judgment in favor of the heirs at law, Seymour and Robert Radin.

We granted review to reconsider the historical rule that extrinsic evidence is inadmissible to reform an unambiguous will. We conclude that the categorical bar on reformation of wills is not justified, and we hold 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. We further conclude that the charities' theory that the testator actually intended at the time he drafted his will to provide that his estate would pass to the charities in the event his wife was not alive to inherit the estate is sufficiently particularized,

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with respect to the existence of such a mistake and the testator's intent, that the remedy of reformation is available so long as clear [190 Cal.Rptr.3d 298] and convincing evidence on both points is demonstrated. Therefore, we will direct this matter to be remanded to the probate court for consideration of whether clear and convincing evidence establishes that such a mistake occurred at the time the will was written and that the testator at that time intended his estate to pass to the charities in the event his wife was not alive to inherit the estate when he died.


In 1984, when Irving Duke was 72 years of age, he prepared a holographic will in which he left all of his property to " my beloved wife, Mrs. Beatrice Schecter Duke," who was then 58 years of age. He left to his brother, Harry Duke, " the sum of One dollar." He 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."

Irving [1] further provided in his will that " I have intentionally omitted all other persons, whether heirs or otherwise, who are not specifically mentioned herein, and I hereby specifically disinherit all persons whomsoever claiming to be, or who may lawfully be determined to be my heirs at law, except as otherwise mentioned in this will. If any heir, devisee or legatee, or any other person or [352 P.3d 866] persons, shall either directly or indirectly, seek to invalidate this will, or any part thereof, then I hereby give and bequeath to such person or persons the sum of one dollar ($ 1.00) and no more, in lieu of any other share or interest in my estate."

The will appointed Beatrice the executrix of the estate. The only change Irving ever made to his will was the addition, in 1997, of the statement that " [w]e hereby agree that all of our assets are community property." Beatrice died in July 2002, but the will was not changed to select a new executor.

Irving died in November 2007, leaving no spouse or children. In February 2008, a deputy public administrator for the County of Los Angeles obtained the will from Irving's safe deposit box. In March 2008, two charities, the City of Hope (COH) and the Jewish National Fund (JNF), petitioned for probate and for letters of administration. In October 2008, Robert and Seymour Radin (the Radins) filed a petition for determination of entitlement to estate

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distribution. The Radins are the sons of Irving's sister, Rose Duke Radin, who predeceased Irving. Their petition alleged that they are entitled to the distribution of Irving's estate as Irving's sole intestate heirs.

The Radins moved for summary judgment. They did not challenge the validity of the will. Instead, they asserted that the estate must pass to Irving's closest surviving intestate heirs, the Radins, because Irving did not predecease Beatrice, nor did Irving and Beatrice " die at the same moment," and there is no provision in the will for disposition of the estate in the event Irving survived Beatrice. In opposition to the motion, COH and JNF offered extrinsic evidence to prove that Irving intended the will to provide that in the event Beatrice was not alive to inherit Irving's estate when Irving died, the estate would be distributed to COH and JNF. The probate court concluded that the will was not ambiguous, and on that ground, it declined to consider extrinsic evidence of Irving's intent, [190 Cal.Rptr.3d 299] and granted summary judgment for the Radins.

The Court of Appeal affirmed, based on our opinion in Estate of Barnes (1965) 63 Cal.2d 580 [47 Cal.Rptr. 480, 407 P.2d 656] ( Barnes ). In Barnes, the testatrix's will provided that all of her property was to go to her husband, and if she and her husband died simultaneously or within two weeks of each other, her entire estate was to go to her nephew, Robert Henderson. Her will included a disinheritance clause, stating that " 'I hereby declare that I have thought of and considered each and every person who would inherit from me had I died intestate and who is not mentioned in this Will, and I hereby declare that I do not desire to devise or bequeath to such person or persons any sum whatsoever and I hereby disinherit such person or persons.'" ( Id. at p. 581, fn. 5.) The testatrix's husband predeceased her, but she did not alter her will after his death.

When the testatrix died, 13 years after executing the will, she had various heirs at law, but Robert Henderson was not an heir at law because his mother was still alive. In the heirship proceeding, Henderson's mother testified that at the time the will was executed, Henderson frequently visited the testatrix at her home and spent many holidays with her, the two had a close relationship, and the testatrix was fond of him and often introduced him as her son. She also testified that the other relatives did not visit. The trial court found the will ambiguous, admitted the extrinsic evidence, and construed it in favor of Henderson. ( Barnes, supra, 63 Cal.2d at p. 582.)

We reversed the judgment. We stated that the extrinsic evidence concerning Henderson's relationship with the testatrix did not assist in interpreting the will. Although that evidence might have explained why the testatrix named Henderson as an alternate beneficiary in the event she died within two weeks

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of her husband, it shed no light on her intention in the event her husband died years before she did. We further observed that the will made no disposition of her property in the event she outlived her husband by several years, and noted that although a disinheritance clause could prevent a claimant from inheriting under the will, it could not prevent heirs from inheriting pursuant to the statutory rules of intestacy. [352 P.3d 867] ( Barnes, supra, 63 Cal.2d at pp. 582-583.)

Turning to the will, we acknowledged that " a will is to be construed according to the intention of the testator, and so as to avoid intestacy." ( Barnes, supra, 63 Cal.2d at p. 583.) We added, " However, a court may not write a will which the testator did not write." ( Ibid. ) The terms of the testatrix's will reflected that she wanted all of her property to go to her husband, and " also demonstrate[d] an awareness that [if she died within two weeks of her husband] she might well have no further opportunity to designate an alternate, and therefore she named [Henderson]. However, ... the will is devoid of a provision or suggestion as to testatrix' intent if, as occurred, she was afforded sufficient time to review the will following the death of her husband." ( Ibid. ) We noted that if the absence of a disposition of her property had come to her attention after her husband died, she might have provided that her estate would go to Henderson, or she might have made other provisions. " Under such circumstances any selection by the courts now would be to indulge in forbidden conjecture." ( Id. at p. 584.) Finally, we found no " 'dominant dispositive plan'" that might warrant [190 Cal.Rptr.3d 300] the finding of a gift by implication. ( Ibid. ) Therefore, finding the extrinsic evidence offered no assistance, we reversed the order distributing the estate to Henderson.

The Court of Appeal noted that the will in this case is similar to the will in Barnes, supra, 63 Cal.2d 580. " Just as the court concluded in Barnes, Irving's will is not ambiguous. ... It simply made no disposition whatsoever of the property in the event Irving outlived his wife by several years, as eventually occurred." The Court of Appeal also found the will sufficiently similar to the will in Barnes to compel the conclusion that it does not reflect a dominant dispositive plan to leave the estate to JNF and COH. Finally, it rejected the admission of extrinsic evidence because the evidence did not address any ambiguity in the will.

The Court of Appeal added that it was " mindful of the fact that the ultimate disposition of Irving's property ... does not appear to comport with his testamentary intent. It is clear that [Irving] 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

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same moment.'" It concluded, however, that because the will is unambiguous, Barnes, supra, 63 Cal.2d 580, precluded consideration of the extrinsic evidence.

We granted review to consider whether the rule applied in Barnes, supra, 63 Cal.2d 580, should be reconsidered. For the reasons set forth below, we hold that the [190 Cal.Rptr.3d 301] categorical bar on reformation of unambiguous wills is not justified and that reformation is permissible if clear and convincing evidence establishes an error in the expression of the testator's ...

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