Wills Can Be Amended After Death, Cal Supreme Court Rules

By Casey C. Sullivan, Esq. on July 29, 2015 | Last updated on March 21, 2019

Finally, that LLM you got in Zombie Law is about to pay off! The California Supreme Court ruled on Monday that wills may be amended post-mortem. That's a drastic shift from the categorical bar against modifying an unambiguous will.

Of course, those wishing to amend their wills after death won't need to reanimate a corpse or two -- though it wouldn't hurt. Clear extrinsic evidence of the testator's intent should be enough.

Those Foolproof Holographic Wills

The case involved the estate of Irving Duke who, of course, prepared his own holographic, handwritten will. Duke, 72 at the time, left almost all of his property to his 58-year-old wife. A dollar was saved for his brother, Harry. (We can only assume that the two Duke brothers weren't close.) Should Irving Duke and his wife die simultaneously, one half of the estate was to go to the City of Hope, a breast cancer nonprofit, and the other half to the Jewish National Fund. Everyone else was specifically disinherited.

Quick, issue spotters! What did Irving miss? Of course, Irving Duke failed to plan for the possibility that his wife would die before him. Indeed, she died in 2002, six years before Irving passed away, childless and single, at the age of 96. The nonprofits and Irving's heirs (his sister's children) began to fight over the estate, the nonprofits arguing that Irving clearly wanted them to take under the will, his heirs saying that his estate should be distributed as though he died intestate.

Goodbye Barnes, Hello Extrinsic Evidence

The California Supreme Court first adopted a categorical bar against considering extrinsic evidence in 1964, in the Estate of Barnes. There, Mrs. Barnes created a will very similar to Irving Duke's. If she died first, her husband took all her property. If she and her husband died at once, it went to her nephew. Like Duke, Barnes did not contemplate outliving her husband. The court refused to allow evidence that she wanted her nephew to take her estate should she outlive her spouse, on the grounds that her intent in the will was unambiguous.

Here, the court unanimously rejected the Barnes rule. That categorical bar no longer conformed with modern probate and interpretation of wills, the court held. There is no good argument for excluding it, the court ruled, noting that extrinsic evidence is allowed in many other areas of legal interpretation. Where clear and convincing evidence establishes a testator's intent, in contrast to what is contained in the will, that evidence may be considered.

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