Cite as B294530
Filed February 18, 2020, Second District, Div. Six.
By Daniel C. Kim
Weintraub Tobin Chediak Coleman Grodin Law Corporation
Headnote: Reformation of Wills – Standard of Review
Summary: Unambiguous wills may be reformed based on extrinsic evidence establishing clear and convincing evidence of a mistake in the drafting, and of the testator’s actual and specific intent.
William and Hanako Nelson married in 1981. In 2000, Hanako executed a trust leaving a separate property rental home to Gary and Jay Wilkin, her sons from a prior marriage. Contemporaneously, Hanako executed a pour-over will granting the residue of her estate to her trustee upon her death. Hanako died in 2016. Gary, her successor trustee, filed a probate petition requesting that all of her community and separate property be transferred to the trust, based on the unambiguous language of the will’s residuary clause. William filed a competing petition seeking reformation of the pour-over will to confirm Hanako’s intent to transfer only her separate property into the trust. During a three-day trial the estate planner testified that he and Hanako had never discussed her community property, and that the trust was intended to transfer only her separate rental property. Gary and his brother also acknowledged that Hanako had never used the term “community property” in discussions with them. The court found, notwithstanding the unambiguous language of the will, clear and convincing evidence of Hanako’s actual intent to fund the trust only with her separate property. The court equitably reformed the will to confirm that only separate property assets would be poured into Hanako’s trust. Gary appealed.
The appellate court affirmed. Although a trial court must find clear and convincing evidence of a mistake and of the testator’s true intent in order to reform a will, the court applies the substantial evidence standard on appeal. Using this standard, the court found substantial evidence to support the trial court’s findings that Hanako’s intent was to transfer only her separate property into the trust. Under Estate of Duke, extrinsic evidence is admissible to establish the testator’s intent. Here, there was no evidence that Hanako had any intent to transfer community property into her trust, and substantial evidence of her intent to only transfer her separate property.