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Appellate Practice

Demonstrating that one can reform any legal document shown to contain a mistake.

By Daily Journal Staff  |  March 17, 2016

Estate of Duke

Robin Meadow Partner Greines, Martin, Stein & Richland Los Angeles
Robert A. Olson Partner Greines, Martin, Stein & Richland Los Angeles
Jeffrey E. Raskin Partner Greines, Martin, Stein & Richland Los Angeles
Susan Cooley Partner Oldman, Cooley, Sallus, Gold, Birnberg & Coleman Encino
Reynolds Cafferata Partner Rodriguez, Horii, Choi & Cafferata Los Angeles
Gerald Serlin Partner Benedon & Serlin Woodland Hills


Robin Meadow, Greines, Martin, Stein & Richland

Where there’s a will, there’s a new way for potential beneficiaries to contest it, thanks to Greines, Martin, Stein & Richland LLP lawyers who convinced the state Supreme Court to reverse precedent dating from Britain’s 1540 Act of Wills holding courts powerless to correct mistakes in a last will and testament.

The unanimous court, following arguments by Greines Martin’s Robin Meadow, reversed the 2nd District Court of Appeal and, in allowing extrinsic evidence of intent to reform the will in question, altered probate guidelines it had set in 1965. Estate of Duke, S199435 (July 27, 2015, petition for review filed Jan. 17, 2012).

Meadow said a light bulb went on as he considered how to advance arguments made in the trial court and before a state appellate panel by his colleagues Robert A. Olson and Jeffrey E. Raskin, aided by Susan J. Cooley of Oldman, Cooley Sallus, Birnbert & Coleman LLP; Reynolds T. Cafferata of Rodriguez, Horil, Choi & Cafferata LLP; and Gerald M. Serlin of Benedon & Serlin LLP.

The case arose when Irving Duke handwrote his will in 1984, leaving his $5 million estate to his wife and “the sum of One dollar ($1.00) and no more” to his brother.

If Duke and his wife were to die at the same moment, the estate was to be divided. Half was to go to the City of Hope cancer research center in his sister’s name; half to the Jewish National Fund to plant trees in Israel in Duke’s parents’ names.

But Duke omitted instructions regarding what to do if his wife died first, which she did. And Duke failed to rewrite the will after her death.

The result was a classic battle following Duke’s demise in 2007 in which his now-dead sister’s sons claimed the law let them inherit because circumstances described in the will never happened, while the charities argued that common sense was on the side of their claim.

Meadow represented the charities. “Our approach was to show that the modern trend in the law is that you can reform any document shown to contain a mistake,” he said. “Trial and appellate counsel argued forcefully, but the state of the law in California was that the only way to get extraneous evidence is to show that a will is ambiguous.”

Duke’s will was clear in its intent, not ambiguous, and the existing probate framework and state high court precedent prevented lower courts from agreeing to reform it.

Meadow had hefty firepower on his side from the American Law Institute scholars who drafted the Restatement Third of Property and agreed reformation of wills is permissible if it is clear what the donor’s intention was.

He also proffered authority by law professors John Langbein and Lawrence Waggoner who wrote – and the Supreme Court cited – “Reformation of Wills on the Ground of Mistake: Change of Direction in American Law?”

“We had highly persuasive authority in our pockets,” Meadow said. Still, a problem for the justices was that Meadow’s opponents had on their side the argument that allowing wills to change would open the floodgates of abuse.

“Our Supreme Court has always disregarded that kind of threat,” Meadow said. “They were careful, as we saw at oral argument when Justice [Goodwin] Liu expressed grave concern about drawing a line so that any mistake justifying reformation of a will had to be the testator’s actual mistake, not just a case of not knowing what he was doing.”

The other problem was the high court’s 1965 precedent, Estate of Barnes, which held that evidence from outside a will was not to be considered. Meadow took that head on, urging reversal. The justices agreed and did so.

Meadow said he was encouraged at oral argument when Chief Justice Tani G. Cantil-Sakauye, who would write the court’s opinion, focused on “the kind of unfairness that can happen when a layperson writes a will. It was not purely a legal argument, but something with social impact.”

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