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In re Estate of Duke

Supreme Court of California
352 P.3d 863, 61 Cal.4th 871 (2015)



Irving Duke prepared a will in which he left all of his property to his wife, Beatrice. Irving’s will provided that if he and his wife died simultaneously, his property should be divided between two charities. Beatrice was appointed the executor of the estate. Beatrice died before Irving, but the will was not changed to select a new executor. When Irving died, he left no spouse or children. The two charities petitioned for probate. Robert and Seymour Radin (the Radins) were the sons of Irving’s sister, who predeceased Irving. The Radins filed a petition alleging that they were entitled to the distribution of Irving’s estate as Irving’s sole intestate heirs. The Radins asserted that the estate must pass to them because Irving did not predecease Beatrice, nor did Irving and Beatrice die simultaneously. Because there was no provision in the will for disposition of the estate in the event that Irving survived Beatrice, the Radins argued that Irving died intestate. The charities opposed the Radins’ motion and offered extrinsic evidence to prove that Irving intended to provide that in the event Beatrice was not alive to inherit Irving’s estate when Irving died, the estate would be distributed to the charities. The Radins argued that reformation of wills should never be permitted because (1) the testator is not available as a witness, (2) reformation overrides the formalities required to execute a will, and (3) allowing reformation will result in a significant increase in probate litigation. The probate court granted summary judgment for the Radins, holding that the will was not ambiguous and declining to consider extrinsic evidence of Irving’s intent. The charities appealed.

Rule of Law


Holding and Reasoning (Cantil-Sakauye, C.J.)

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