Sound estate planning requires a clear description of how property will pass upon death – in other words, who gets what. So what happens when the written terms differ from what the will’s creator actually wanted?

Earlier this year, the California Supreme Court ruled in Estate of Duke (2015) 61 Cal.4th 871 that courts may correct a mistake in the wording of a will even if the language in question is not ambiguous. The proponent of the correction (also known as reformation) must provide clear and convincing evidence of both (1) a mistake in the expression of intent and (2) the actual specific intent of the maker when the will was written. The decision opens the door in California to a new kind of trust and estate litigation.

Irving Duke had a large estate. He handwrote a will stating that his wife was to receive his estate when he died, and two charities would receive his estate if he and his wife died at the same time. He did not say how his property would pass if he outlived his wife. When his wife died, he failed to correct this omission. Upon his death, a fight erupted – in one corner were Irving’s nephews who claimed rights as his intestate heirs (i.e., next of kin), and in the other corner were the two charities.

Rounds 1 and 2 of the bout went to the nephews. At the Superior Court in Los Angeles and later in the Court of Appeal, the nephews prevailed because the will provided for the charities only in the event Irving and his wife died simultaneously. Under the Supreme Court’s decision in Estate of Barnes (1965) 63 Cal.2d 580, the lower courts determined they could not consider the evidence of mistake. The will was not ambiguous and so it meant what it said.

The Supreme Court, in the all-important Round 3, reconsidered and rejected Estate of Barnes, holding that the focus should be on Irving’s intent as testator. If it could be proven by clear and convincing evidence that Irving meant to provide for the charities in the event he survived his wife, the charities were the proper beneficiaries and the trial judge could reform the will so as to correct his mistake.

Note that the clear and convincing evidence standard is higher than the preponderance of the evidence standard that usually applies in civil cases, so the proponent of the correction has a steep hill to climb. Still, the Supreme Court’s ruling will allow parties unhappy with the terms of a will to argue that they do not reflect what the decedent really wanted, resulting in a trial on that issue.

Takeaways from this case—

• Do-it-yourself estate planning carries an increased risk of litigation. If the maker of a will (formally known as a “testator”) does not clearly express his or her wishes with regard to beneficiaries, thinking through the various scenarios that may occur, the will may be tied up in costly litigation that could drag on for years. A will’s terms must be stated clearly and may need revision as circumstances change. Had Irving expressly provided for the charities, they would not have incurred legal expenses seeking to establish their beneficial rights under the will.
• Estate planning attorneys may want to increase the documentation in their files as to the client’s wishes so as to be ready to defeat a “mistake” argument that may surface many years later, such as by preparing a memo to the file describing the conversations with the client about his/her wishes. For example, if a client wants to leave most of her property to a Sacramento arts organization instead of her children, the client’s reasoning (e.g., her love of ballet) might be detailed in the file. Language expressly disinheriting disfavored individuals also may discourage challenges.
• If you think the maker of a will meant to name you (or your organization) as a beneficiary, or to give you a larger share, and if you have (or think you can get) strong evidence to support your claim, you have a chance to set things right if you act promptly. The Supreme Court has changed the rules so you can put up your “dukes.”

Estate of Duke rests on the foundational principle in California law that courts will seek to honor the intent of testators with regard to the disposition of their property. While trials over testamentary wishes add time and expense to the administration of probate estates, they permit an in depth look at what the testator wanted so that justice can be done.