In Estate of Duke, the California Supreme Court changed the rules for altering a will after the death of the testator. Before Duke, only an ambiguous will could be amended by the court using extrinsic facts. Now a court may alter an unambiguous will if there is clear and convincing evidence that the testator had specific intent to make a bequest that mistakenly omitted when the document was drafted and executed. This change, as the court noted, puts wills construction on the same level as trusts which, in California, have long been alterable using extrinsic evidence. The court expressed doubt the change will provoke a torrent of lawsuits because suits are usually based on the size of the estate rather than availability of legal routes to challenge a gift. Going forward, the results of this change will be watched nationwide as other states potentially consider a similar change.
See Ryan D. Cunningham & Allonn E. Levy, Duke Blazes a New Trail in Estate Law, Wealth Management, August 11, 2015.
Special thanks to Jim Hillhouse for bringing this article to my attention.
