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Charities Lose Bequests When Donor Doesn’t Change Will

Charities Lose Bequests When Donor Doesn’t Change Will

Handwritten instrument failed to provide bequest when man’s wife predeceased him by several years

In 1984, Irving Duke prepared a handwritten will in which he left everything to his wife except for the $1 bequest he used to cut his brother out of the estate. He also provided that if he and his wife died simultaneously, his estate would be divided between the City of Hope in the name of his sister, and the Jewish National Fund to plant trees in Israel. 

His wife died in 2002.  He died in 2007, without children, and without having changed his will.  The charities filed the will for probate, but his nephews, his sole surviving heirs, requested the appointment of an administrator on the ground that the will did not provide what should happen if his wife predeceased him and resulted in an intestacy in which they would split the estate valued at about $5 million.

A trial court has agreed, and a court of appeals in California has affirmed.  (Estate of Duke, Ct. of App., CA, Second Dist., Div. 4, No. B227954, 12/5/11.)

Citing a prior decision by the state Supreme Court, the Court of Appeals said that the will was not ambiguous. “The will set forth his intent only in the event he predeceased his wife, or if they died ‘at the same moment.’  It simply made no disposition whatsoever of the property in the event Irving outlived his wife by several years, as eventually occurred…. We cannot engage in conjecture as to what the testator may have intended but failed to express in order to avoid a conclusion of intestacy.  Furthermore, the existence in Irving’s will of a disinheritance clause does not prevent respondents from taking under the statutory rules of inheritance where, as here, the decedent must be considered as having died intestate.”

The Court also rejected the charities’ argument that the “dominant dispositive plan” warranted a finding of an implied gift to them, distinguishing another state Supreme Court case that the charities attempted to rely upon. 

The Court expressed some sympathy with the charities’ argument that it should be able to consider extrinsic evidence in construing the effect of the document.  After his wife’s death, Irving had given substantial amounts to the City of Hope and told its representative that he was leaving his estate to it and the Jewish National Fund.  “Recognizing that a will is to be construed according to the intention of the testator, and so as to avoid intestacy, perhaps the rule regarding the admission of extrinsic evidence should be more flexible when a testator’s conduct after an event that would otherwise cause his will to be ineffective brings into question whether the written word comports with his intent. [The Supreme Court’s prior case] takes that option out of our hands. Perhaps it is time for our Supreme Court to consider whether there are cases where deeds speak louder than words when evaluating an individual’s testamentary intent.”


Until the state Supreme Court changes its rule, if ever, it can be important for development officers to try to assure that donors have actually written effective instruments to make the anticipated bequest.  Is it possible to get a copy of the instrument, or the dispositive parts, or at least to get the name of the attorney drafting the instrument? In a case like this, if the donor said there was no attorney, it probably wouldn’t be deemed being too pushy to suggest that the donor get professional help to assure that the entire estate plan is effective.

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