Jim Porter: Make a will, but do it right!
Special to the Sun
Having a will prepared is one of those things most of us should do. Not talk about it, not think about it, but actually go to a lawyer’s office and pay for a will or a living trust.
You can also do your own will, called a holographic will, which must be handwritten, dated and signed. I don’t advise it but it generally will work.
If you prepare a holographic will you better get it right or your heirs will end up in court as happened to Irving Duke.
When Irving Duke was 72 years old he prepared a holographic will leaving all of his property, and it appears it was substantial, to “my beloved wife, Mrs. Beatrice Schecter Duke,” who was then 58 years old.
He left his brother Harry Duke one dollar. The handwritten will went on to say that if Beatrice and he died “at the same moment” his estate would be equally divided by the City of Hope and the Jewish National Fund “to plant trees in Israel in the names and loving memory of my mother and father.”
Is that clear? Any ambiguities?
You be the Judge
Beatrice died before Irving, something he had not anticipated. Irving died in 2007 leaving no spouse or children.
You be the judge. Who gets the estate?
The City of Hope and the Jewish National Fund went to court arguing they should inherit given Irving’s intent.
A somewhat distant relative, Irving’s closest heir, argued there was nothing in Irving’s will in the event he survived his wife Beatrice and the two did not “die at the same moment,” so Irving died “intestate,” without an effective will. Property goes to his heirs.
The trial court and Court of Appeal agreed, giving Irving’s money to the distant relative, not to the two charities. The charities appealed to the California Supreme Court arguing Irving’s intent was to leave to the charities.
Where There’s a Will There’s a Way
California law does not allow evidence in court to correct a mistake in a will when the will is unambiguous. It is only when the will is ambiguous that testimony about the intent of the will maker is allowed to clarify the ambiguity in the will.
The trial court and Court of Appeal said there was no ambiguity. The will said the estate goes to Beatrice but she was dead and Irving and his wife did not “die at the same moment,” so Irving died intestate – without a will. Money goes to the next living relative.
The Supreme Court changed the law on unambiguous wills, ruling that even if a will is unambiguous, it may be changed by the court to conform to the Testator’s (will maker’s) intent if clear and convincing evidence establishes that the will contains a mistake in the Testator’s expression of intent at the time the will was drafted, and also establishes the Testator’s actual specific intent at the time the will was drafted.
The case goes back to the trial court to confirm Irving’s intent, which seems to be to leave his estate to the City of Hope and the Jewish National Fund.
My purpose in writing this column is to encourage you to have a will or living trust done, and done properly, to avoid the nightmare caused by Irving Duke’s careless (but not ambiguous) hand-written will.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com.
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