California Supreme Court Delivers Bombshell: Opening Unambiguous Wills to Extrinsic Attack

In a radical departure from both case law and common law, in July 2015 the California Supreme Court ruled that extrinsic evidence is admissible to reform an unambiguous will.  Estate of Duke, — Cal. 3d –, 190 Cal.Rptr.3d 295 (July 27, 2015).

But if a will is unambiguous, why would a court change it?  Duke doesn’t just overturn longstanding California Supreme Court Case precedent barring the use of extrinsic evidence to reform an unambiguous will.  Estate of Barnes (1965) 63 Cal.2d 580. It also skirts the specific rules set forth California Probate Code § 6111.5, raising separation of powers questions. The case amounts to a full frontal attack on the Statute of Frauds, and has potentially vast ramifications for many cases outside the narrow realm of the reformation of testamentary documents.

In Duke, Duke’s will stated that his estate should pass to his wife, but if they died at the same time, it would pass to two charities. Duke later added a codicil providing that his property and his wife’s was community property. He didn’t explicitly address what would happen if his wife died first. Duke’s wife did die first, and he made no other will. Upon the testator’s death, faced with the scenario that Duke did not address, charities and heirs began squabbling over the estate. The trial court and Court of Appeal court of appeal followed well-established law and ruled that the unambiguous will could not be reformed by extrinsic evidence of Duke’s intent in the event his wife died first, and accordingly the estate must pass through the rules of intestacy.

Practitioners should note that the trial court could have also taken two other paths to avoid intestacy. First, because Duke’s will was unambiguous and distributed the estate to that of Duke’s wife, given the codicil that all of Duke’s property was community property the court could have ruled that his estate passed to the estate of his predeceased wife, to be distributed as her will provided. Second, the court could have ruled the will was internally ambiguous because it was confusing as to what to do with the estate if Duke’s wife passed first, and then used extrinsic evidence to clear up the ambiguity, thus passing the estate to the named charities.

The California Supreme Court took neither well-worn path, instead undermining the State of Frauds.
The court reversed and held that Duke could not have intended that the charities would take only in the event that both spouses died simultaneously. Specifically, despite prior caselaw, the court held the unambiguous will could be reformed by admitting extrinsic evidence. Applying an analogy of use extrinsic evidence to prove a contract, the court reasoned that the Statute of Frauds only exists to bar unreliable evidence, and when clear and convincing and reliable extrinsic evidence of intent exists, it is admissible.

This result yields ambiguity and confusion. Now a court may reform an unambiguous will upon any “clear and convincing evidence” beyond the four corners of the document showing the intent of the testator. This will lead to an increase in contested wills and related litigation, because the concept of “clear and convincing evidence” is inherently flexible, and disappointed heirs are prone to use any avenue of attack. Moreover, Duke shows the California Supreme Court’s increasing willingness to let parties introduce evidence to vary the plain language of contracts, a trend first seen in Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Association, which weakened the parol evidence rule by allowing extrinsic evidence to prove fraud in the negotiation of contracts. The court’s course is sure to make lawyers busier.

Mark McGuire

Mark H. McGuire is an associate attorney with Brown White & Osborn, LLP. Primarily practices in the area of trust, estate and bankruptcy litigation, representing fiduciaries, debtors, beneficiaries and creditors. He is also a court appointed attorney in Riverside County, representing minors and conservatees in contested guardianship and conservatorship matters.
Mark McGuire