Testator Beware: The Court May Rewrite Your Will

Ambigious languageA new decision by the Supreme Court of California has interesting implications for when a will can be reformed by the court.

Irving Duke created a "holographic" (i.e., hand written) will under which his wife was to receive all of his property. However, the will dictated that if Duke and his wife died at the same time, then his property was to be divided amongst various charities. What Duke did not contemplate in his will is the possibility that his spouse would pass away before he did, which is exactly what happened.

As Duke had never redrafted his will after his wife passed away, the trial and appellate courts declared that his property should go to his relatives under the laws of intestacy. However, the California Supreme Court ruled that an unambiguous will can be reformed by the court if it can be established by clear and convincing evidence that a mistake was made in expressing the testator's intent at the time the will was drafted. The Wills, Trusts & Estates Prof Blog reported on this case in "Unambiguous Will May Be Reformed Because Of Mistake."

This means that if the charities can establish that Duke clearly meant for his property to go to them in the event his wife was not able to inherit it, then the court can effectively rewrite the will to make that clear and the charities would inherit Duke's property. It is difficult to determine what a deceased person intended to do. While it might seem clear that Duke intended his property to either go to his wife or to the charities, it could also be the case that he intended to rewrite his will if his wife did pass away before him. Consequently, this is the reason courts have generally been unwilling to rewrite potentially mistaken wills. It now appears probate courts in California will need to determine what a deceased person intended when the will is silent on an issue.

If you have had changes in your life or in the lives of your loved ones, then do not delay that phone call to a qualified estate planning attorney to review and update your estate plan. You can learn more about this topic as well as other strategies on our website under the tab entitled: estate planning in Virginia. Be sure you also sign up for our complimentary e-newsletter so that you may be informed of all the latest issues that could affect you, your loved ones and your estate planning.  However, proper estate planning is not a do-it-yourself project.  Why not call us for a complimentary consultation at 757-259-0707. 

Reference: Wills, Trusts & Estates Prof Blog (October 23, 2015) "Unambiguous Will May Be Reformed Because Of Mistake."

Suggested Key Words: Holographic Will, Handwritten Will, Will Mistakes, Estate Planning Mistake, Charitable Gifting, Probate Courts, Estate Planning Attorney, Estate Plan

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