DUKE, ESTATE OFAppellants’ Petition for ReviewCal.January 17, 20123 1A4435 No.S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN THE MATTER OF THE ESTATE OF DUKE ROBERTB. RADIN and SEYMOUR RADIN ss cseseee p SUPREME COURT FILEDPetitioners and Respondents, ve JAN 17 2012 JEWISH NATIONAL FUND and CITY OF HOPE, Erodonek K. Shirish Ctork Claimants and Appellants. wef California Court of Appeal, Second District, Division Four 2nd Civil No. B227954 Appeal from the Los Angeles County Superior Court Hon. Mitchell Beckloff, Los Angeles County Superior Court Case No. BP108971 PETITION FOR REVIEW OLDMAN, COOLEY, SALLUS, GOLD, "RODRIGUEZ, HORII, CHOI & BIRNBERG, & COLEMAN,LLP CAFFERATA, LLP Susan Cooley, SBN 93664 Reynolds Cafferata, SBN 160484 16133 Ventura Boulevard, Penthouse A 777 South FigueroaStreet, Suite 2150 Encino, California 91436-2408 Los Angeles, California 90017 C (818) 986-8080 / Fax (213) 892-7700 / Fax (213) 892-7777 BENEDON & SERLIN GREINES, MARTIN, STEIN & Gerald Serlin, SBN 123421 RICHLAND LLP Douglas Benedon, SBN 110197 Robin Meadow, SBN 51126 21700 Oxnard Street, Suite 1290 Robert A. Olson, SBN 109374 Woodland Hills, California 91367 Jeffrey E. Raskin, SBN 223608 (818) 340-1950 / Fax (818) 340-1990 5900 Wilshire Boulevard, 12th Floor , Los Angeles, California 90036 (310) 859-7811 / Fax (310) 276-5261 Attorneys for Claimants and Appellants JEWISH NATIONAL FUND and CITY OF HOPE COPY No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN THE MATTER OF THE ESTATE OF DUKE ROBERT B. RADIN and SEYMOUR RADIN Petitioners and Respondents, VS. JEWISH NATIONAL FUND and CITY OF HOPE, Claimants and Appellants. California Court of Appeal, Second District, Division Four 2nd Civil No. B227954 Appeal from the Los Angeles County Superior Court Hon.Mitchell Beckloff, Los Angeles County Superior Court Case No. BP108971 PETITION FOR REVIEW RODRIGUEZ, HORII, CHOI & CAFFERATA, LLP Reynolds Cafferata, SBN 160484 777 South Figueroa Street, Suite 2150 Los Angeles, California 90017 (213) 892-7700 / Fax (213) 892-7777 OLDMAN,COOLEY, SALLUS, GOLD, BIRNBERG, & COLEMAN, LLP Susan Cooley, SBN 93664 16133 Ventura Boulevard, Penthouse A Encino, California 91436-2408 (818) 986-8080 / Fax BENEDON & SERLIN Gerald Serlin, SBN 123421 GREINES, MARTIN, STEIN & RICHLAND LLP Douglas Benedon, SBN 110197 21700 OxnardStreet, Suite 1290 Woodland Hills, California 91367 (818) 340-1950 / Fax (818) 340-1990 Robin Meadow, SBN 51126 Robert A. Olson, SBN 109374 Jeffrey E. Raskin, SBN 223608 5900 Wilshire Boulevard, 12th Floor Los Angeles, California 90036 (310) 859-7811 / Fax (310) 276-5261 Attorneys for Claimants and Appellants JEWISH NATIONAL FUND and CITY OF HOPE TABLE OF CONTENTS ISSUES PRESENTED INTRODUCTION STATEMENT OF THE CASE A. Irving Duke Prepares A Holographic Will That Expressly Disinherits All Heirs Besides His Wife And Names City Of Hope And Jewish National Fund AsThe Sole Contingent Beneficiaries. After His Wife Dies, Irving Confirms His Intended Charitable Testamentary Bequests, Making Three $100,000 Gifts To City Of Hope AndStating That HeIs “Leaving His Estate To City OfHope And Jewish National Fund.” UponIrving’s Death, An Heir Hunter Locates The Radins—Nephews With Whom Irving Had No Contact For Decades. The Probate Court Enters Summary Judgment For The Radins, Finding That Irving’s Will Results In A Complete Intestacy And The Estate Passes To The Very Relatives Irving Had Expressly Disinherited. The Court OfAppeal Reluctantly Affirms In A Published Opinion. WHY REVIEW IS NECESSARY I. CALIFORNIA LAW REGARDING IMPLIED TESTAMENTARY GIFTS IS CONFUSED AND CONFLICTING. A. Historical Overview: The Four Comers Rule As Judge-Made Law. 1. The source of the four corners rule. Page 1] 1] 1] 11 I. IIL. TABLE OF CONTENTS (Continued) 2. Barnes applied the four cornersrule to bar extrinsic evidenceoftrue testator intent. 3. If there ever wasa statutory basis for the four corners rule, it no longerexists. California Courts Vary Widely In Their Views Of Whether The Law Favors Or Disfavors Implied Gifts. THE FOUR CORNERSRULE IS OBSOLETE AND SHOULD BE ABANDONED. A. Strict Application Of The Four Corners Rule Has Led Courts In California And Elsewhere To Strain To Create Ambiguities In Order To Be Able To Consider Extrinsic Evidence. This Court And The Legislature Have Eliminated The Four Corners Rule In Every Area OfDocument Interpretation But The Implied Gifts. THE COURT SHOULD CONSIDER WHETHER TO FOLLOW LEADING COMMENTATORS, THE RESTATEMENT AND THE COURTS OF OTHER STATES AND HOLD THAT COURTS MAY REFORM UNAMBIGUOUSWILLS IN ORDER TO CORRECT MISTAKES. CONCLUSION ii Page 12 14 16 19 19 25 28 34 TABLE OF AUTHORITIES Page CASES Adams v. Cook (1940) 15 Cal.2d 352 29 Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 8 Brockv. Hall (1949) 33 Cal.2d 885 11, 12, 13, 17 Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 29 Coale v. Smith 4 Pa. 376 16 Darpino v. D’Arpino (N.J.Super.Ct.App.Div. 1962) 73 N.J.Super. 262 25 Engle v. Siegel (1977) 74.N.J. 287 24, 25 Erickson v. Erickson (1998) 246 Conn. 359 32 Estate ofAkeley (1950) 35 Cal.2d 26 21, 22 Estate ofBaker (1963) 59 Cal.2d 680 26 Estate ofBarnes (1965) 63 Cal.2d 580 passim Estate ofBlake (1910) 157 Cal. 448 11, 12, 16, 17 Estate ofBurson (1975) 51 Cal.App.3d 300 17, 27 lil TABLE OF AUTHORITIES (Continued) CASES Estate ofCampbell (1967) 250 Cal.App.2d 576 Estate ofCummings (1968) 263 Cal.App.2d 661 Estate ofDye (2001) 92 Cal.App.4th 966 Estate ofFranck (1922) 190 Cal. 28 Estate ofKarkeet (1961) 56 Cal.2d 277 Estate ofKime (1983) 144 Cal._App.3d 246 Estate ofOlsen (1935) 9 Cal.App.2d 374 Estate ofPetersen (1969) 270 Cal.App.2d 89 Estate ofRussell (1968) 69 Cal.2d 200 Estate ofSalmonski (1951) 38 Cal.2d 199 Estate ofSandersfeld (1960) 187 Cal.App.2d 14 Estate ofStanford (1957) 49 Cal.2d 120 iv Page 16, 27 27 32 17 13, 22, 23, 24, 33 2, 23 33 17, 27 14, 15, 20, 25, 27 18 17 1] TABLE OF AUTHORITIES (Continued) CASES Estate ofSwallow (1962) 211 Cal.App.2d 359 Estate ofTaff (1976) 63 Cal.App.3d 319 Estate of Walkerly (1895) 108 Cal. 627 Flannery v. McNamara (2000) 432 Mass. 665 Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586 Hess v. Ford Motor Co. (2002) 27 Cal.4th 516 In re Estate ofHerceg (N.Y.Sur.Ct. 2002) 193 Misc.2d 201 Inre Estate ofTarrant (1951) 38 Cal.2d 42 In re Lyons Marital Trust (Minn.Ct.App. 2006) 717 N.W.2d 457 In re Page’s Trusts (1967) 254 Cal.App.2d 702 In re Kremlick (Mich. 1983) 331 N.W.2d 228 In re Last Will & Testament ofDaland (Del.Ch. 2010) 2010 WL 716160 Page 16 19, 20, 24 16 32 29, 30 15 32 13 32 27 24 32 TABLE OF AUTHORITIES (Continued) Page CASES Metcalfv. First Parish in Framingham (1880) 128 Mass. 370 17 Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33 26 STATUTES California Probate Code Section 50 27 Section 51 26 Section 53 26 Section 105 3, 14, 27 Section 21102 3, 14, 27 Section 21102(c) 30 Section 6110(c) 27 Section 6111.5 8, 15, 27, 30 Section 6111 26 Section 6112 26 Colorado Revised Statutes Section 5-11-806 32 Florida Statutes Section 732.615 32 vi TABLE OF AUTHORITIES (Continued) Page STATUTES Washington Revised Code Section 11.96A.125 32 OTHER AUTHORITIES 9 Wigmore on Evidence (3d ed. 1940) § 2461 25 16 Cal. Law Revision Com.Rep.(1982), Tentative Recommendation Relating to Wills and Intestate Succession 14 31 Cal. Law Revision Com. Rep. (2001) 30 64 Cal.Jur.3d (2011) Wills, § 370 29 Annct., Correcting Mistakes or Supplying Omissions (1935) 94 A.L.R. 26 29 Deerings, Cal. Civ. Practice Codes (1982 ed.) Probate, § 53 26 Deerings, Cal. Civ. Practice Codes (1983 ed.) Probate, § 105 14 de Furia, Mistakes in Wills Resulting From Scriveners’ Errors: The Argumentfor Reformation (1990) 40 Cath.U. L.Rev. 1 29, 30, 33 Haskell, When AxiomsCollide (1993) 15 Cardozo L.Rev. 817 21, 24, 29 Langbein & Waggoner, Reformation of Wills on the Ground of Mistake: Change of Direction in American Law? (1982) 130 U.Pa.L.Rev. 521 21, 24, 29, 30, 32 Vii TABLE OF AUTHORITIES (Continued) Page OTHER AUTHORITIES Restatement 3d Property (Wills & Donative Transfers) § 3.1 31 § 11.1 31 § 12.1 31, 32 Ross, Cal. Practice Guide: Probate (The Rutter Group 2008), q 15:161.5 30 Vili ISSUES PRESENTED “Perhapsit is time for our Supreme Court to consider whether there are cases where deeds speak louder than words whenevaluating an individual’s testamentary intent.” (Slip Opn., p. 13.) So wrote the Court of Appeal on the facts presented here. Irving Duke’s holographic will disinherited everyone buthis wife, and providedthat ifhe and his wife died simultaneously his estate would pass to City of Hope and Jewish National Fund. After his wife died, Irving told a City of Hoperepresentative that he was “leaving his estate”to these charities. (Slip Opn., p. 3.) Though the will did not expressly say so, the Court of Appeal foundit clear from extrinsic evidencethat Irving meant for the charities to take if his wife died before him. Butit felt boundto the four corners of the will under this Court’s half-century-old decision in Estate of Barnes (1965) 63 Cal.2d 580, which bars consideration of extrinsic evidence in support of implied gifts. So, intestate succession rules applied, and Irving’s estate wentto the very heirs he hadtried to disinherit. Is Barnes at odds with the primary goal of effectuating testators’ intent? Specifically: 1. Should courts be able to consider extrinsic evidence in determining whetherto construe a will as containing an implied gift? 2. Should courts be able to reform an unambiguouswill, as the Restatement and leading scholars urge and as a growing minority of states have already recognized? INTRODUCTION California law regarding implied gifts is confused, conflicting and anachronistic. Evidence can makeit absolutely clear that a testator made a mistake in expressing his intent, either by omitting a beneficiary or failing to describe the conditions under which a beneficiary will inherit. But the law of impliedgifts as it now exists bars courts from considering that evidence—courts can only lookto the four corners of the will. This four corners rule is out of step with modern legal jurisprudence and scholarship as well as with the rules that California applies to interpret other writings. Alone amongthe potential subjects of written instruments in California, wills are slaves to written languageat the expense ofeffectuating the author’s true intent. Asa result, courts seeking to effectuate testators’ clear intent have strained to find ambiguities on the slimmest of excuses. Somecourts find them; others can’t or won’t. The predicamentfor the bench andbaris similar to what one court concluded abouttestator’s oral declarations under eeprior law: ““[I]t is impossible to determine whenthetestator’s oral declarations would be deemed admissible in any given case [citation] becausethe courts, in an understandable effort to circumvent the harshness of the rule [excluding those declarations] have attempted to create multiple exceptionsor, oftentimes, simply ignoredits existence.’” (Estate ofKime (1983) 144 Cal.App.3d 246, 265 (Kime).) In this environment—exacerbated by the present decision—lawyers cannot hope to provide dependable predictions of the potential outcome of probate proceedings, and clients cannot hope to make wise decisions about whetherto assert a position in those proceedings. In the nearly 50 years since this Court last considered the admissibility of extrinsic evidence to imply a gift in a will—in Estate of Barnes, supra, 63 Cal.2d 580, a short and enigmatic opinion with virtually no analysis on the point—California legislative policy, the courts of other states, and academic thought havesignificantly liberalized the interpretation of wills. Our Legislature discarded former Probate Code section 105, replacing it with the more liberal Probate Code section 21102. And the Restatementand leading scholars go beyond easing evidentiary restrictions on implied gifts: They urge allowing reformation of wills that unambiguously omit a bequest whenit can be clearly shownthat the testator intendedit. The Court of Appeal rightly questioned Barnes’ continuingvitality. Regardless of whether Barnes correctly stated the law in 1965, extrinsic evidence ofa testator’s true intent should no longer be relegated to irrelevance when evaluating implied gifts. Rather, it should be admissible and persuasive. There is ample basis for making that the law, andthis Court should grant review to do so. STATEMENT OF THE CASE A. Irving Duke Prepares A Holographic Will That Expressly Disinherits All Heirs Besides His Wife And Names City Of Hope And Jewish National Fund As TheSole Contingent Beneficiaries. In 1984, when he was 73 and his wife was 56 (see AA 109, 111), Irving Duke prepared a holographic will. It contained four key articles: + “First—I hereby give, bequeath and deviseall of [my] property ... to my beloved wife, Mrs. Beatrice Schecter Duke [address].” * “Second—To mybrother, Mr. Harry Duke, [address], I leave the sum of One Dollar ($1.00) and no more.” * “Third—Should my wife Beatrice Schecter Duke andI die at the same moment, myestate is to be equally divided [{] One-half is to be donated to the City of Hope in the name and loving memory ofmy sister, Mrs. Rose Duke Radin. [J] One-half is to be donated to the Jewish National Fundto planttrees in Israel in the names and loving memory ofmy mother and father—Bessie and Isaac Duke.” * “Fourth—I haveintentionally omitted all other persons, whether heirs or otherwise, whoare not specifically mentioned herein, and I hereby specifically disinherit all persons whomsoeverclaiming to be, or who may lawfully be determined to be myheirsat law, except as otherwise mentioned in this Will. If any heir, devisee or legatee, or any other person or persons, shall either directly or indirectly, seek to invalidate this Will, or any part thereof, then I hereby give and bequeath to such person or persons the sum of one dollar ($1.00) and no more, in lieu of any other share or interest in my estate.” (AA 121-123; Slip Opn., p. 2.) B. After His Wife Dies, Irving Confirms His Intended Charitable Testamentary Bequests, Making Three $100,000 Gifts To City Of Hope AndStating That He Is “Leaving His Estate To City Of Hope And Jewish National Fund.” Beatrice died in July 2002. (Slip Opn., p. 3.) In August 2003, Irving invited a City of Hope Senior Gift Planning Officer, Sherrie Vamos,to his apartment. ([bid.; AA 167-168.) Consistent with his will’s charitable bequest, Irving executed a “City of Hope Gift Annuity Agreement” and gave Vamoscheckstotaling $100,000. (Slip Opn., p. 3; AA 172-174; see also AA 168.) In early January 2004, Irving again invited Vamosto his apartment, executed a second City of Hope Charitable Gift Annuity Agreement and gave Vamos another $100,000. (Slip Opn., p. 3; AA 168, 176-177.) He told Vamoshe was “leaving his estate to City of Hope and to Jewish National Fund.” (Slip Opn., pp. 3-4; AA 168.) It was Vamos’ understanding from this conversation that Irving had already prepared a will that included gifts to City of Hope and Jewish National Fund(collectively the charities), not that he intended to dosoin the future. (Slip Opn., p. 4.) Later that month, Irving executed a third City ofHope Charitable Gift Annuity Agreementand provided a further $100,000. (Slip Opn., p. 4; AA 168.) Cc. UponIrving’s Death, An Heir Hunter Locates The Radins—Nephews With Whom Irving Had No Contact For Decades. Irving died childless in November 2007. (Slip Opn., p. 3; AA 105 [{ 5], 116, 164 [9 5].) A Los Angeles Deputy Public Administrator found Irving’s will in Irving’s safe deposit box at First Federal Bank. (Slip Opn., p. 3; AA 183.) While he left an estate valued at over $5 million (Slip Opn., p. 3; AA 32, 72), Irving had lived like a pauper (AA 70). Irving’s sole surviving relatives were his nephews, Robert and Seymour Radin. (Slip Opn., p. 3; AA 134-146; see also, e.g., AA 106 [¥ 6], 164 [§ 6].) Irving had no ongoingrelationship with either, and neither assisted with his funeral and internment. (See AA 31, 70-71.) Robert last spoke with Irving during the 1970s. (AA 18.) They nevervisited, even though they lived within walking distance. (AA 36.) Robert never metor spoketo Irving’s wife, Beatrice. (AA 18, 20.) Robert only learned of Irving’s death because an heir hunter found him. (AA 21.) Seymourlast saw Irving in 1965, and madenoeffort to contact him. (AA 71, 79.) In Seymour’s view,Irving was evil. (AA 81.) Seymourdid not know anyonein contact with Irving, and,like his brother only learned of Irving’s death through an heir hunter. (AA 70-71.) D. The Probate Court Enters Summary Judgment For The Radins, Finding That Irving’s Will Results In A Complete Intestacy And The Estate Passes To The Very Relatives Irving Had Expressly Disinherited. The charities—the only surviving beneficiaries namedin Irving’s holographic will—petitioned for probate. (Slip Opn., p. 3; AA 114-130; see also AA 1-2.) The Radins countered with a Petition For Determination Of Entitlement To Estate Distribution. (Slip Opn., p. 3; AA 134-146.) While agreeing that Irving’s will was valid, they argued that the charities could only take if Irving and Beatrice died “at the same moment,” whichdid not occur. (AA 136-137.) Since Irving’s will contained no other clauses controlling estate distribution, they argued that there was a complete intestacy and the estate must pass to them ashis closest living relatives. (AA 137.) Thetrial court granted summary judgmentto the Radins, relying heavily on Estate ofBarnes, supra, 63 Cal.2d 580 (Barnes). E. The Court Of Appeal Reluctantly Affirms In A Published Opinion. In its published opinion, the Court of Appeal deemed Barnes controlling and indistinguishable because it too involved a will (though not holographic) that contained a bequest (thoughto a relative, notto charities) in the event of the simultaneous death of the testatrix and her spouse, but did not provide what would happen if the spouse predeceasedthe testatrix. (Slip Opn., p. 8 [“In summary, we conclude that the Barnes decisionis directly on point and controls our decision here”].) According to the Court of Appeal, under Barnes “[w]e cannot engage in conjecture as to what the testator may have intended but failed to express in order to avoid a conclusion of intestacy. (Barnes, supra, 63 Cal.2d at pp. 583-584.)” (Slip Opn., p. 8.) The court also believed that Barnes precludedit from considering relevant out-of-state authority. (/bid. [“Wedecline, as we must, appellants’ invitation to look to cases from other states in which courts construed wills similar to the one now before us as implying a testamentary intent not stated on the face of the will. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)’”].) The court concluded: “[T]he question is whether extrinsic evidence should always be inadmissible when the languagein a will is otherwise clear on its face. The Barnes court held the answeris ‘yes.’” (Slip Opn., p. 12; see id. at p. 11 [reading Probate Code section 6111.5, allowing admission of extrinsic evidence in the event of ambiguity, as further supporting the exclusion of such evidence where issue is whether gift should be implied].)! ' All California statutory citations are to the Probate Code. 8 But the court also madeclear that it was not comfortable with the result thatit felt Barnes compelled, because that result was at odds with Irving’s evidentintent: We are mindful of the fact that the ultimate disposition of Irving’s property, seemingly appropriate whenstrictly examining only the languageofhis will, does not appear to comport with his testamentary intent. It is clear that he meant to dispose ofhis estate through his bequests, first to his wife and, should she predecease him, thento the charities. It is difficult to imagine that after leaving specific gifts to the charities in the names and memories of beloved family members, Irving intended them to take effect only in the event that he and his wife died “‘at the same moment.” (Slip Opn., p. 12,italics added.) The court further noted that while in Barnes this Court found that the extrinsic evidence “did not assist in interpreting the will,”“that is not the case here, as there is evidence of Irving’s intentions after the death ofhis wife.” (Slip Opn., p. 12.) It called upon this Court to reexaminethe law as embodied in Barnes: Recognizing “that a will is to be construed accordingto the intention of the testator, and so as to avoid intestacy” ({Barnes] at p. 583), perhaps the rule regarding the admission of extrinsic evidence should be moreflexible 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. Barnes takes that option out of our hands. Perhapsit 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. (Id. at pp. 12-13.) 10 WHY REVIEW IS NECESSARY I. CALIFORNIA LAW REGARDING IMPLIED TESTAMENTARYGIFTS IS CONFUSED AND CONFLICTING. A, Historical Overview: The Four Corners Rule As Judge-Made Law. 1. The source of the four corners rule. Implied gifts—thatis, effectuating intended testamentary gifts that may be “imperfectly expressed” in a will—date back in California at least acentury. This Court described the basic rule in Brock v. Hall (1949) 33 Cal.2d 885 (Brock): The implication of gifts in wills rests upon the primary rule of construction that the duty of the court in all cases of interpretation is to ascertain the intention of the maker from the instrumentread as a whole andto give effect thereto if possible, and it is well settled that, where the intention to makea gift clearly appears in a will, although perhaps imperfectly expressed, the court will raise a gift by implication. (/d. at pp. 887-888, citing among others Estate ofBlake (1910) 157 Cal. 448, 467-468 (Blake), disapproved on anotherpoint in Estate ofStanford (1957) 49 Cal.2d 120, 129; see Blake, supra, 157 Cal. at pp. 466-467 [“Bequests by implication have from remote times been sustained where no direct language in a will is found to support them but where from informal 11 language used such reasonable construction can be placed onit as implies an intention to make a bequest”’].) The key feature of the rule—which apparently drove the decision in Barnes and definitely drove the Court of Appeal’s decision here—is that “the intention to make a gift [must] clearly appear[] from the instrument taken by itsfour corners and read as a whole... .” (Brock, supra, 33 Cal.2d at p. 889, italics added.) This rule limits courts to textual analysis; extrinsic evidenceis forbidden. (Slip Opn., p. 12, citing Barnes, supra, 63 Cal.2d at pp. 582-583.) A concomitant of the four corners rule is that when courts find implied gifts, they are not construing ambiguities. Indeed, the whole point of impliedgifts is that the will is not ambiguous, just imperfectly expressed——“no direct language in a will is found to support”the gift, but the overall tenor of the instrument does support it. (Blake, supra, 157 Cal. at p. 466, italics added.) To find an implied gift, courts have focused on whetherthe will’s “dominant dispositive plan” supports the gift. (Brock, supra, 33 Cal.2d at p. 892 [implying gift in a trust].) 2. Barnes applied the four corners rule to bar extrinsic evidence of true testator intent. Following the four corners rule, Barnes held that absenta textually apparent “dominant dispositive plan”there can be no impliedgift. (See Barnes, supra, 63 Cal.2d at p. 584.) In Barnes, the testatrix’s will bequeathed all her property to her husband. (/d. at p. 581.) It provided that if she and her husband died simultaneously or nearly so, her property would go to her nephew, whom 12 she named as an alternate executor to her husband. The will contained a disinheritance clause. (/d. at p. 581 and fn. 5.) But no provision addressed what would happenifthe husband predeceasedthetestatrix, as he did. Thetrial court received evidence regarding the nephew’s long and close relationship with the testatrix; found the will ambiguous; and construedit to include a bequest to the nephew. (dd. at p. 582.) This Court reversed. It found no ambiguity in the will. Rather, it foundthat the will unambiguously did not address the circumstance where the testatrix’s husband predeceased her. In Barnes’ view, nothing in the extrinsic evidence regarding Henderson’s relationship with the testatrix was relevant—[t]he extrinsic testimony sheds nolight on the intention of testatrix with respect to the situation which actually had comeinto existence by the death oftestatrix’ husband somefive years before her own death.” (63 Cal.2d at pp. 582-583.) And, in one summary sentence,it also found no basis for implying a gift: “No such ‘dominant dispositive plan’ as referred to and held to warrant a gift by implication in [Brock], cited by petitioner, is demonstrated by the provisions of the will now before us.” (Jd. at p. 584.) * Barnes did not evaluate residual bequests to charities, much less ones namedin honorofbeloved relatives—the Barnes petitioner was the testatrix’s nephew. Gifts to charity are liberally construed to accomplish the testators’ charitable intent. Un re Estate ofTarrant (1951) 38 Cal.2d 42, 46.) Nor, since it did not involve a holographic will, did Barnes consider the rule that a will drawn by a laypersonis liberally construed. (Estate of Karkeet (1961) 56 Cal.2d 277, 282 (Karkeet).) 13 3. If there ever wasa statutory basis for the four corners rule, it no longerexists. Althoughthe four corners rule may once have had somestatutory underpinning, as far as we can determinetherule exists today only by virtue ofjudicial decisions. The rule seemsto haveits roots in the Statute of Wills and its descendants in California, particularly section 105 as it existed before the 1983 Probate Code revision. That section stated that “when an uncertainty arises upon the face ofa will, as to the application of any of its provisions, the testator’s intention is to be ascertainedfrom the wordsofthe will, taking into view the circumstances under which it was made, excluding such oral declarations [ofintent by the testator].” (Former § 105, italics added (Deering’s Cal. Civ. Practice Codes (1983 ed.) Probate, § 105, p. 1822).) But the statute did not prevent this Court from allowing consideration of extrinsic evidence to determine whether, in fact, a will was ambiguous. (Estate ofRussell (1968) 69 Cal.2d 200, 212-213 (Russell) [“In short, we hold that while section 105 delineates the mannerofascertaining the testator’s intention “when an uncertainty arises upon the face ofa will,’ it cannot always be determined whetherthe will is ambiguousornot until the surrounding circumstancesare first considered”’].) In any case, today’s Probate Code contains no suchlimitations. Section 105 wasrepealed in 1983. (Stats. 1983, ch. 842, § 18, operative Jan. 1, 1985; see Tentative Recommendation Relating to Wills and Intestate Succession, 16 Cal. Law Revision Com. Rep. (1982) p. 2503.) Its counterpart today is section 21102. It states that “[t]he intention of the transferor as expressed in the instrumentcontrols the legal effect of the 14 dispositions made in the instrument” (subd. (a)), but it introduces various rules of construction that apply “wherethe intention of the transferor is not indicated by the instrument”(subd.(b)), andit further states that “{nJothing in this section limits the use of extrinsic evidence, to the extent otherwise authorized by law, to determine the intention of the transferor” (subd. (c)). Section 6111.5, cited by the Court of Appeal (Slip Opn., p. 11), does not impose anylimitations: It a/lows extrinsic evidence in interpreting ambiguities.*> The statute’s legislative history makesclear that it was designed to ensurethe availability of extrinsic evidence, under existing legal standards, in connection with evaluating holographic wills. (Motion for Judicial Notice (MJN); see in particular Ex. B, pp. 19, 25, 32-33, 68, 84, 94.) In fact, section 6111.5 was amendedbefore passage to omit four corners language. Asoriginally proposed, the statute would have allowed extrinsic evidence “to determine the meaning ofa will or a portion ofa will if the meaning is unclear on theface ofthe document.” (MIN,Ex. B, pp. 7-8.) Theitalicized language was eliminated in the only amendmentto the statute before it was enacted. (MIJN, Ex. B, pp. 9-14, 33 [bill “codifies existing law ”], 68 [same], 94 [letter in bill author’s file urging deletion of “on the face” language as contrary to Russell]; see Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532 [‘‘Generally the Legislature’s rejection of a specific provision which appearedin the original version of an act supports the conclusion that the act should not be construed to include the 399omitted provision’”].) That section 6111.5 allows extrinsic evidence in > Section 6111.5 states: “Extrinsic evidence is admissible to determine whether a documentconstitutes a will pursuant to Section 6110 or 6111, or to determine the meaningofa will or a portion ofa will if the meaningis unclear.” 15 cases of ambiguity certainly does not limit its admissibility in implied gift cases. Since this leaves Barnes and its predecessors as the sole basis for the four cornersrule, nothing limits this Court’s powerto revisit the rule. B. California Courts Vary Widely In Their Views Of Whether The Law Favors Or Disfavors Implied Gifts. Despite Blake’s statement that implied gifts have been sustained “from remote times” (Blake, supra, 157 Cal. at p. 466), California’s courts are deeply divided on their attitude toward implied gifts. One court went sofar as to claim that “[t]he doctrine of implied gifts, as suggested by appellant, has not been recognized in California, though discussed in Estate of Walkerly [(1895)] 108 Cal. 627.” (Estate of Swallow (1962) 211 Cal.App.2d 359, 364.) At the spectrum’s other end—just five years later—is Estate ofCampbell (1967) 250 Cal.App.2d 576, 582: “The doctrine of an implied bequest to issue in similar situations appears to be well established in California law.” Other courts display varying degrees of favor or disfavor. For example, in Blake, supra, 157 Cal. 446, this Court said that “[a] strong probable implication of a devise arising from the will is sufficient (Coale v. Smith, 4 Pa. St. 376), and the tendency of modern casesis rather to extend than narrow therule of raising devises by implication (2 Powell on Devises, 211).” (157 Cal. at p. 468.) Another court, citing the primacy of“the testator’s intent as expressed in the will” and the principle “that the language used mustbeliberally construed with a view to carrying into effect what the will as a whole showswasthereal intent ofthe testator,” 16 observedthat “(rJeasoning from these canonsof construction, the courts have encountered nobarrier to finding testamentary gifts by implication.” (Estate ofPetersen (1969) 270 Cal.App.2d 89, 95.) In contrast, Estate ofBurson (1975) 51 Cal.App.3d 300, 307, although finding an implied gift, referred to “the principle disfavoring bequests by implication”; and Estate ofSandersfeld (1960) 187 Cal.App.2d 14, quoting a post-Blake decision of this Court, said that “{a]lthough a devise or bequest mayarise by implication, before a court is warranted in so declaring, the probability of an intent to make the same ‘must appear to be so strong that an intention contrary to that imputed to the testator cannot be supposed to have existed in his mind.’ Estate ofFranck [1922] 190 Cal. 28, 32, 210 P. 417, 418 [(Franck)].” The middle ground seemsto be held by Brock, supra, 33 Cal.2d 885, in which this Court said that “a gift will be raised by necessary implication wherea reading ofthe entire instrument produces a conviction that a gift wasintended.” (/d. at p. 889.) In support of this statement Brock cites both the relatively liberal Blake and the very strict Franck, as well as several other cases that quote Franck.‘ “ Brock also cites Metcalfv. First Parish in Framingham (1880) 128 Mass. 370, 374, which is evidently the source of the “conviction” language: “[I]f a reading of the whole will produces a convictionthat the testator must necessarily have intended an interest to be given whichis not bequeathed by express and formal words, the court must supply the defect by implication, and so mould the language ofthe testator as to carry into effect, as far as possible, the intention whichit is of opinion that he has on the whole will sufficiently declared.” 17 Andfinally there is Barnes—the Court’s most recent decision on this subject, which provides no analysis, just strict application of the four cornersrule. That courts have struggled with defining the implied gift test suggests discomfort with the required four corners approach. There’s a good reason: Deprived of information they have available in every other interpretational context, courts must act in a self-imposed evidentiary vacuum that unavoidably requires speculation aboutthe testator’s intent—-even though “[i]n the interpretation of wills, ascertainment of the intention of the testator is the cardinal rule of construction, to whichall other rules mustyield.” (Estate ofSalmonski (1951) 38 Cal.2d 199, 209.) As wenext demonstrate, this need not be the case. There is ample basis for discarding the four corners rule. 18 IL. THE FOUR CORNERSRULE IS OBSOLETE AND SHOULD BE ABANDONED. A. Strict Application Of The Four Corners Rule Has Led Courts In California And Elsewhere To Strain To Create Ambiguities In Order To Be Able To Consider Extrinsic Evidence. The Court of Appeal recognized that “the ultimate disposition of Irving’s property, seemingly appropriate whenstrictly examining only the language ofhis will, does not appear to comport with his testamentary intent”; the court believedit “clear”that Irving intended for the charities to take if his wife predeceased him. (Slip Opn., p. 12.) But, constrained by the four corners rule and findingitself unable to see any ambiguity, the court found intestacy. Other courts, perhaps less forthright but more determined to effectuate testator intent, have not beenso reticent. Bypassing implied gifts and the limitations of the four corners rule, they have fashioned intent- favorable holdings on the basis of supposed ambiguities that are hard if not impossible to discern—andare certainly no more apparent than here. Estate of Taff: \n Estate ofTaff(1976) 63 Cal.App.3d 319 (Taff), the testatrix made a bequestto her sister and providedthatif the sister did not survive the testatrix, the residue would “pass to my heirs in accordance with the lawsofintestate succession.” (/d. at p. 322.) Relying on extrinsic evidence that includedthetestatrix’s communications with her lawyer, the trial court construed “heirs” to mean only the testatrix’s sister’s children and 19 not her husband’s line; the Court of Appeal affirmed. (/d. at 523.) Citing Russell, supra, 69 Cal.2d 200, the court held that the extrinsic evidence “exposed a latent ambiguity,i.e., that when the testatrix used the term ‘my heirs’ in her will, she intended to exclude therelatives of her predeceased husband, Harry. Under Russell, supra, the extrinsic evidence was properly received both to create the ambiguity in the word ‘heirs’ and to resolve the ambiguity.” (63 Cal.App.3d at p. 325.) Although this result clearly comported with the testatrix’s intent, it is hard to see how one could ever equate “heirs in accordance with the laws of intestate succession” with “only mysister’s children.” The languageis not reasonably susceptible to that meaning, with or without extrinsic evidence. Whatthe court actually did was to imply a gift. (To put the matter more directly, it reformed the will to fix a drafting mistake on the basis of the extrinsic evidence. See §III, post.) But since the four corners rule forbade that approach,the court had to speak in terms of ambiguity.* Scholars havecriticized T.aff ’s analysis as indefensible under Russell: “Taffthus turned Russell upside down, makingit stand for a propositionit had expressly rejected... . The disputed term in Taffthat had been mistakenly employed was quite unambiguous. The effect of the decision in Taffwas to substitute a phrase such as ‘my natural heirs’ for the inapt phrase that the will had employed (‘myheirs in accordance with the laws of intestate succession, in effect at my death in the State of California’) in > One could exercise similar legerdemain here by construing Irving’s gift to the charities if he and his wife wereto die “at the same moment”to include if his wife predeceased him. Other courts have madesimilar interpretation leaps, as the charities showedin their Court of Appealbriefs. 20 order to carry out what the court conceivedto be the actual or subjective intent ofthe testatrix.” (Langbein & Waggoner, Reformation of Wills on the Ground ofMistake: Change ofDirection in American Law? (1982) 130 U.Pa. L.Rev. 521, 557-558 (Reformation of Wills); see also Haskell, When Axioms Collide (1993) 15 Cardozo L.Rev. 817, 825 (Axioms) (“In effect, the court created an ambiguity in the word ‘heirs’ and subsequently resolved the ambiguity by reference to extrinsic evidence”].) Estate ofAkeley. This Court has not been immune. In Estate of Akeley (1950) 35 Cal.2d 26, a holographic will left the residue ofthe estate to three charities, but provided that each wasto receive “25 percent”(id. at p. 28)—leaving 25 percent unaccounted for, which the State sought to escheat. Thetrial court found that the testatrix intended the three charities to share the entire residue of her estate (ibid.); this Court affirmed. Noting that the trial court presumptively considered extrinsic evidence—“the surrounding circumstances, namely that the testatrix was unmarried, that she had norelatives of any degree of kindred, that this condition was contemplated by the testatrix, and that she drafted the will herself” (35 Cal.2d at p. 30)—the Court concludedthat “‘[t]he language showing a purposeand intention to dispose ofthe entire estate, and the use of the specified percentages aggregating less than the whole, created an ambiguity which it was necessary to resolve before distribution could be ordered.” (/bid.) Despite the precision of “25 percent,” the Court construed it to mean one-third because “‘it is the duty of the court so to construe the language thatit will conform to the testatrix’ intention as disclosed by the will rather than to defeat such intention by strict adherenceto the technical sense of particular words.” (/d. at p. 29.) In dissent, Justice Traynor 21 argued, in essence, that “25 percent” could not mean “one-third,” and that the majority erred by relying on the presumption against intestacy to hold otherwise. (/d. at pp. 31-33 (dis. opn. of Traynor, J.).) Justice Traynor was right—“25 percent” cannot mean “one-third.” There was no ambiguity to construe. Yet the result was unquestionably consistent with the testator’s intent. What the Court did, without saying so 3 wasto imply a gift of the remaining 25 percent to the three beneficiaries. Estate ofKarkeet. The Court endorsed a similar transformation in Karkeet, supra, 56 Cal.2d 277. There, the entire substance of the holographic will stated: “‘This is my authorization to Miss Leah Selix [address], to act as executrix ofall and any property and personaleffects (and bank accounts) to act without bond or order of Court.’” (Jd. at p. 279.) Selix petitioned to have the residueofthe estate distributed to her. (/d. at p. 280.) Thetrial court rejected Selix’s proffered extrinsic evidence that “Selix was a very near and dearfriend [ofthe testatrix], [whom she] treated as a sister” and that “the testatrix had indicated prior to the date ofthis will that she was going to make a will for Leah Selix”(ibid.), but it nevertheless ruled for Selix. In essence, it found that it would be unreasonable to concludethat the testatrix wentto the trouble of making a will without intending to make a bequest. (/bid.) This Court found it reasonable to conclude that “having prepared the will herself and not being familiar with the more modern technical meaning of the term ‘executrix’ the decedent designated her close friend as such intending that she bethe residuary legatee... .” (/d. at p. 283.) Explicitly relying on the proffered extrinsic evidence, the Court noted that Selix was the testator’s friend and referred to the testatrix’s “manifest intention in the 22 preparation and execution ofherwill.” (bid.) The Court reversed only so the State, which sought to escheat the residue, could have an opportunity to rebut Selix’s extrinsic evidence. Onceagain,there is just no way that “executrix” could ever mean “beneficiary”—itis not reasonably susceptible to that interpretation. But this Court found the word ambiguous anyway, and then proceededto resolve the ambiguity in favor of a bequest and against intestacy. And once again, although the Court did not so describeit, the essence of the result wasto implya gift. Estate ofKime. Essentially the same thing happenedin Kime, supra, 144 Cal.App.3d 246, in which the will appointed an executrix but did not name a beneficiary. The court held that it was properto receive extrinsic evidence to provethat the testatrix could have believed that “executrix” meant “beneficiary” and that “appoint” meant “bequeath.” (/d. at pp. 262- 264.) But, the court lamented, “[w]e recognize and regret, however, that the foregoing interpretation perpetuates the recent tendency of our courts to make subtle and often questionable distinctions in order to circumventthe statutory prohibition of [former] section 105 in attempting to producejust results by giving effect to the paramountrule in the interpretation ofwills: a will is to be construed according to the intention of the testator, and not his imperfect attempt to express it.” (/d. at p. 264, footnote omitted.) All of these cases involved wills that were not truly ambiguous, even in light of the extrinsic evidence. But the extrinsic evidence did plainly show that the unambiguouslanguageofthe wills did not fully express the testators’ intent. The four corners rule would have precluded the consideration of any extrinsic evidence to imply gifts. So, in order to 23 effectuate the testators’ intent, the courts stretched to create ambiguities so as to be able to imply gifts under the guise of interpretation. As one commentator observed, casting the issue in terms of reformation, “Courts, as in [Jn re] Kremlick {(Mich. 1983) 331 N.W.2d 228], frequently avoid express reformation of wills by finding an ambiguity in the terms. A finding of ambiguity allowsthe courts to hang reformation on the peg of construction, a process tending toward remedy that courts feel more comfortable applying.” (Axioms, supra, 15 Cardozo L.Rev.at pp. 819- 820.)° California courts are not alonein their frustration. Reformation of Wills discusses a numberofsimilar situations, using Taffand Englev. Siegel (1977) 74 N.J. 287, as lead examples. The authors state: “In truth, each ofthe two wills [in Taffand Engle] wasutterly unambiguous. What each court actually did wasto prefer the extrinsic evidence of the testator’s intent over the contrary but mistaken language in the will.” (130 U.Pa. L.Rev.at p. 522.) Engleis instructive, because it involved situation similar to that here: A residuary legatee predeceased the testators, a possibility that the will did not provide for. Relying on extrinsic evidence, the New Jersey ° The California decisions—allcited in the charities’ Court of Appeal briefs but not discussed by the Court of Appeal—would also support a finding of ambiguity. One need only see how Karkeet, supra, 56 Cal.2d 277, utilized the presumption against intestacy to support an ambiguity finding, noting that “[c]onstructions leading to intestacy in wholeorin part are generally rejected where the language of a will may reasonably be construed to dispose ofthe entire estate.” (/d. at pp. 281-282.) Not only does the Court of Appeal’s holding here create an intestacy, but the resulting disposition is exactly contrary to Irving’s stated wishto disinherit everyone but his wife—a factor not always presentin other cases. 24 Supreme Court held that the residue should pass to the deceased legatee’s heirs. (74 N.J. at pp. 294-297.) It invoked New Jersey’s “probable intent” rule: “Within prescribed limits, guided primarily by the termsofthe will, but also giving due weight to the other factors mentioned above, a court should strive to construe a testamentary instrumentto achievetheresult most consonant with the testator’s ‘probable intent.’” (/d. at p. 291; see also Darpino v. D’Arpino (N.J.Super.Ct.App.Div. 1962) 73 N.J.Super. 262, 269 [similar predecease case; “The powerofthis court to effectuate the manifest intentof a testator by inserting omitted words, by altering the collocation of sentences or even by reading his will directly contrary to its primary signification is well established. This power, when necessary,is exercised to preventthe intention ofthe testator from being defeated by a mistaken use of language”].) This is substantively no different than implying a gift. B. This Court And The Legislature Have Eliminated The Four Corners Rule In Every Area Of Document Interpretation But The Implied Gifts. ‘The history of the law ofinterpretation is the history of a progress from stiff and superstitious formalism to a flexible rationalism.’ (Russell, supra, 69 Cal.2d at p. 209, quoting 9 Wigmore on Evidence (3d ed. 1940) § 2461, p. 187.) In every area but implied testamentary gifts, the law governing consideration of extrinsic evidence in interpreting writings has long followedthe liberal approach established in Russell, supra, 69 Cal.2d 200 25 [extrinsic evidence admissible to determine whether ambiguity exists in will] and Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33 (PG&E) [same re ambiguities in contracts]. These developments strongly suggest that the four corners rule barring extrinsic evidencein the implied gift context is an anachronistic anomaly. The Legislature, too, has continued the unceasing march toward liberalization of probate law,the better to effectuate testators’ intent: * When Barnes was decided, holographic wills had to be “entirely written, dated and signed by the hand ofthe testator himself.” (Former § 53 (Deering’s Cal. Civ. Practice Codes (1982 ed.) Probate, § 53, p. 8).) Any deviation could invalidate the will. (See Estate ofBaker (1963) 59 Cal.2d 680.) But beginning in 1982 the Legislature, through various amendments and enactments, significantly liberalized the requirements, allowing holographic wills to be undated and to include language from commercially printed forms.’ ¢ Under former section 51, a bequest to a subscribing witness was void unless there were two other disinterested witnesses. Section 6112, enacted in 1990, substitutes a presumption of undueinfluence that the beneficiary/witness must rebut. ’ Prob. Code, § 53, added Stats. 1931, ch. 281, § 53, repealed Stats. 1982, ch. 187, § 2; Prob. Code, § 53 (operative until 1/1/1985), enacted Stats. 1982, ch. 187, § 2, repealed Stats. 1983, ch. 842, § 18; Prob. Code, § 6111 (operative 1/1/1985), added Stats. 1983, ch. 842, § 55, repealed Stats. 1990, ch. 79, § 13, repeal effective 7/1/1991 by Stats. 1990, ch. 263, § 1; Prob. Code, § 6111 (operative 7/1/1991), added Stats. 1990, ch. 79, § 14, amendedStats. 1990, ch. 710, § 13 (operative 7/1/1991). 26 * Section 50 once required that the testator declare in the presence of both of two attesting witnesses that the instrumentis his or her will, and sign in their presence. Section 6110(c) now allows an exception “if the proponentofthe will establishes by clear and convincing evidencethat, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.” Whydoesthe four cornersrule persist? In fact, does it persist? Statutory changes(e.g., sections 21102 and 6111.5 replacing formersection 105) and jurisprudential developments that have eliminated the “‘stiff formalism’” of the law (Russell, supra, 69 Cal.2d at p. 210) seem to have impliedly overruled or abandonedtherule. As far as we can determine, no other published case since the 1983 amendments to the Probate Code—or indeed since Barnes—hasapplied the four corners rule to exclude extrinsic evidence in connection with an implied gift. (See Estate ofPetersen (1969) 270 Cal.App.2d 89 [implied gift evaluated solely by reference to testamentary document]; Estate of Cummings (1968) 263 Cal.App.2d 661 [same]; Jn re Page’s Trusts (1967) 254 Cal.App.2d 702 [same]; Estate ofCampbell (1967) 250 Cal.App.2d 576 [same]; but see Estate ofBurson (1975) 51 Cal.App.3d 300, 307, 308 [apparently considering “sketchy extrinsic evidence” in determining that “the only interpretation of decedent’s will which avoidsintestacy as to the contents of the ‘homeplace’ is that which implies a bequest of the content with the devise ofthe realty”].) The time to revisit the four corners rule—and Barnes—has come. There is no impedimentto discarding the rule. This Court should do so. 27 Allowing extrinsic evidence would makethe result in this case straighforward. Irving’s intent—alwaysthe touchstone of construction— was Clear: To leave his estate to his wife if she survived him but otherwise to the charities, and to disinherit his heirs. As the Court of Appealsaid, “It is difficult to imagine that after leaving specific gifts to the charities in the names and memories of beloved family members, Irving intended them to take effect only in the event that he and his wife died ‘at the same moment.’” (Slip Opn., p. 12.) TIT. THE COURT SHOULD CONSIDER WHETHER TO FOLLOW LEADING COMMENTATORS, THE RESTATEMENT AND THE COURTS OF OTHER STATES AND HOLD THAT COURTS MAY REFORM UNAMBIGUOUSWILLS IN ORDER TO CORRECT MISTAKES. Allowing extrinsic evidence in support of an implied gift will fully address the concerns of the present case. But it would leave in place a practice that is flawedatits core by its failure to recognize whatis really happening: not interpretation, but reformation. This case presents the Court with an opportunity to change course in a waythat will simplify and provide more predictability in probate litigation, by holding that reformation is available to correct testators’ holographic errors and lawyers’ drafting errors.’ 8 The charities did not seek reformation in the trial court or Court of Appeal. But the availability of reformation—a pure issue of law—is clearly (continued...) 28 ~ Reformation has long beenavailable for trusts and other donative documents besides wills, under both the common law and the Probate Code. (E.g., Adams v. Cook (1940) 15 Cal.2d 352, 358; Giammarrusco v. Simon (2009) 171 Cal.App.4th 1586, 1604; §§ 17200, subd. (b)(13), (15), 21220.) But wills have been another matter: Even though in manyrespects they maybeindistinguishable from trusts, courts generally refuse to allow reformation for any reason. (See Reformation of Wills, supra, 130 U.Pa. L.Rev. 521, passim; 64 Cal.Jur.3d (2011) Wills, § 370 [“A court is notat liberty to supply missing testamentary language, even wherethereis substantial evidence indicating whatthe testator might have, or probably, intended. A mistake of omission in a will cannot be corrected”]; Annct., Correcting Mistakes or Supplying Omissions (1935) 94 A.L.R. 26 [“It is a well-settled general rule that equity will not reform a will because of mistakes or omissions”); de Furia, Mistakes in Wills Resulting From Scriveners’ Errors: The Argumentfor Reformation (1990) 40 Cath.U. L.Rev. 1, 3-8 (Mistakes in Wills).) For a numberofyears scholars have compellingly arguedthat reformation is actually what courts have been doingall along under the guise ofinterpretation, and that courts should simply acknowledge reformation as an available remedy under appropriate circumstances and with appropriate safeguards. (Reformation of Wills, supra, 130 U.Pa. L.Rev.at pp. 528-543; Axioms, supra, 15 Cardozo L.Rev.at pp. 820-828; 8 (...continued) one direction the law can takein caseslikethis, as it already has in a numberofjurisdictions. The Court’s evaluation of this case would be incomplete without considering that possibility. (See Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 5-6.) 29 Mistakes in Wills, supra, 40 Cath.U. L.Rev.at pp. 21-27.) Some courts and legislatures have already movedin this direction.” Indeed, one California decision, citing a leading practice guide, suggests that Californiaitself is doing so. (Giammarrusco v. Simon, supra, 171 Cal.App.4th at p. 1604 [“In light of more recent changesin the Probate Code, however, the continuing validity of the older cases (barring will reformation) is doubtful,” citing Ross, Cal. Practice Guide: Probate (The Rutter Group 2008) § 15:161.5, p. 15-49, in turn citing §§ 6111.5, 21102, subd.(c)].)" ” See fn. 12, post. Reformation to avoid violationsofthe rule against perpetuities dates back to 1891, andis available in a numberofjurisdictions including California. (Reformation of Wills, supra, 130 U.Pa. L.Rev.at p. 546; § 21220.) '° The Legislature has been cryptic. The Law Revision Commission’s comments to the 2002 amendmentto section 21102, which added subdivision (c), state: “Subdivision (c) neither expandsnorlimits the extent to which extrinsic evidence admissible under former law maybe used to determinethe transferor’s intent as expressed in the instrument. [Citations.] Likewise, underthe parol evidencerule, extrinsic evidence may be available to explain, interpret, or supplement an expressed intention ofthe transferor. Code Civ. Proc. § 1856. [§] Nothingin this section affects the law governing reformation of an instrumentto effectuate the intention of the transferorin case of mistake or for other cause.” (31 Cal. Law Revision Com. Rep. (2001) p. 192.) Whatever the Commission believed was“the law governing reformation,”it is judge-madelaw. 30 In 2003, the Restatement Third of Property (Wills & Donative Transfers) weighed in. Eschewingcourts’ strained efforts to find ambiguity in order to effectuate testators’ intent, section 12.1 embraces the idea that unambiguous donative documents may be reformedto reflect the testator’s true intent: A donative document, though unambiguous, may be reformed to conform the text to the donor’s intentionif it is established by clear and convincing evidence (1) that a mistake of fact or law, whether in expression or inducement, affected specific terms of the document; and (2) what the donor’s intention was. In determining whether these elements have been established by clear and convincing evidence, direct evidence of intention contradicting the plain meaning ofthe text as well as other evidence of intention may be considered. (Rest. 3d Property, § 12.1.)" The comments explain that section 12.1 “unifies the law of wills and will substitutes by applying to wills the standards that govern other donative documents,” as “[e]quity has long recognized that deedsofgift, inter vivos trusts, life-insurance contracts, and other donative documents can be reformed.” (Rest. 3d Property, § 12.1, com. c, p. 354.) “The proposition '' The term “donative document”includes a will. (Rest. 3d Property, § 3.1, com. a, p. 168-169.) “An ambiguity in a donative documentis an uncertainty in meaningthatis revealed by the text or by extrinsic evidence other than direct evidence of intention contradicting the plain meaning of the text.” (Rest. 3d Property, § 11.1.) 31 that the text of a will can be reformed represents a minority but growing view.” (Rest. 3d Property, § 12.1, reporter’s notes, p. 367.)” Asboth the Restatement and the commentators argue, a clear and convincing evidence standard sufficiently protects against abuses. (Rest. 3d Property, § 12.1, com. e, p. 356; Reformation of Wills, supra, 130 U.Pa.L. Rev.at p. 568 [“The safeguard that prevents reformation from being abused—for example, by being employedto interpolate a spurious term—is the ancient requirement of an exceptionally high standard ofproof in '* Apparently only one California case has considered section 12.1 (when it was still in draft form), refusing to apply it. It did so in a case where reformation surely would not have been granted evenif available. (Estate ofDye (2001) 92 Cal.App.4th 966, 979-980.) Our researchto date discloses that several states have adopted statutes substantially like the Restatement formulation. (Colo. Rev.Stat. § 5-11-806 (2009); Fla. Stat. § 732.615 (2011); Wash. Rev. Code § 11.96A.125 (2011).) Other states have allowed reformation by judicial decision. (Erickson v. Erickson (1998) 246 Conn. 359, 371-376 [scrivener’s error]; Jn re Estate ofHerceg (N.Y.Sur.Ct. 2002) 193 Misc.2d 201 [747 N.Y.S.2d 901].) A few courts have rejected the Restatement’s approach. (E.g., Flannery v. McNamara (2000) 432 Mass. 665, 674 [allowing reformation “would open the floodgatesof litigation”]; but see id. at pp. 678-679 [concurring opinion supports allowing reformationin principle; “in an appropriate case, the court will conclude that an unambiguouswill should be reformed becauseof a proven mistake in expression or inducement. Whenthat casearrives, the court will either have to reject or revise whatis said about reformation in this opinion orstruggle to create an ambiguity, where none exists, in order to permit reformation,” conc. opn. of Greanery, J.}); In re Last Will & Testament ofDaland (Del.Ch. 2010) 2010 WL 716160, *5; In re Lyons Marital Trust (Minn.Ct.App. 2006) 717 N.W.2d 457, 462 [stating that “(t)hereis little support amongotherstates to adopt the Restatement’s position on reformation of wills,” but citing only one case that actually considers and rejects Restatement § 12.1, Flannery v. McNamara, supra, 432 Mass. 665].) 32 reformation cases”]; Mistakes in Wills, supra, 40 Cath.U. L.Rev.at p. 3 (“Any danger ofevidentiary fraud could be minimized,ifnot eliminated, by requiring the mistake to be proven by clear and convincing evidence”).) Like the implied gift approach proposed above, reformation under the Restatement approach would yield a straightforward resolutionofthis case. The extrinsic evidence clearly and convincingly showsthat Irving did not intend for his estranged nephews, or anyonebut his wife or the charities, to inherit his estate. Nor is there any reasonto believe that Irving—writing a holographic will on his own as in Karkeet, supra, 56 Cal.2d at p. 283—contemplated,let alone intended,an intestate result. As one court observed,“[t]he idea of any one deliberately purposing to die testate as to a portionofhis estate, and intestate as to anotherportion,is so unusual, in the history of testamentary dispositions, as to justify almost any construction to escapefrom it.” (Estate ofOlsen (1935) 9 Cal.App.2d 374, 380.) The Court of Appeal acknowledged as muchin noting that it was “clear” that Irving intended the charities to take if his wife predeceased him. (Slip Opn., p. 12.) 33 CONCLUSION As the Court of Appeal urged, this Court should grant review and revisit the four corners rule as expressed in Barnes and its predecessors and bring the law of implied gifts in line with modern statutory, scholarly, and jurisprudential developments. It should also consider the broader alternative of allowing reformation of wills to comport with testators’ true intent. Dated: January 17, 2012 Respectfully submitted, OLDMAN, COOLEY, SALLUS, GOLD, BIRNBERG, & COLEMAN, LLP Susan Cooley RODRIGUEZ, HORII, CHOI & CAFFERATA, LLP Reynolds Cafferata BENEDON & SERLIN Gerald Serlin Douglas Benedon GREINES, MARTIN, STEIN & RICHLAND LLP Robin Meadow Robert A. Olson JeffieyERG By Robin Meadow Attorneys for Defendants and Appellants JEWISH NATIONAL FUND and CITY OF HOPE 34 CERTIFICATE OF COMPLIANCE Counsel of Record herebycertifies that, pursuant to California Rules of Court, rule 8.204(c)(1) the PETITION FOR REVIEWis produced using 13-point Roman type including footnotes and contains 8,314 words, whichis less than the total words permitted by the rules of court. Counsel relies on the word count of the computer program usedto prepare this brief. Dated: January 17, 2012 Robin Meadow 35 Filed 12/5/11 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION FOUR ESTATE OF IRVING DUKE,Deceased. B227954 ROBERTB. RADIN etal., (Los Angeles County Super. Ct. No. BP108971) Petitioners and Respondents, V. JEWISH NATIONAL FUNDetal., Claimants and Appellants. APPEALfrom a judgmentofthe Superior Court of Los Angeles County, Mitchell L. Beckloff, Judge. Affirmed. Oldman, Cooley, Sallus, Gold, Bimberg & Coleman, Susan Cooley; Rodriguez, Horii, Choi & Cafferata, Reynolds Cafferata; Benedon & Serlin, Gerald Serlin, and Douglas Benedon for Claimants and Appellants. Sacks, Glazier, Franklin & Lodise and Margaret Lodise for Petitioners and Respondents. INTRODUCTION In this proceeding to determine therights of the parties under the holographicwill of Irving Duke,! the trial court entered judgmentin favorof Robert B. Radin and Seymour Radin,heirs at law of Irving who were not namedin the will, and against the Jewish National Fund (JNF) and the City of Hope (COH), two charitable organizations named in the will. The trial court concluded that the will was unambiguous, and did not make any provision for the disposition of Irving’s property in the event his wife predeceased him by several years, as actually occurred, and therefore intestacy resulted, Because wefully concurwith the trial court’s interpretation of the will and concludethat the applicable law compels the result reachedbythetrial court, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In October 1984, Irving prepared a holographic will. The relevant provisions stated as follows: “I hereby give, bequeath and devise all of the property of which I may die possessed, whetherreal, personal or mixed, whether heretofore or hereafter acquired to my beloved wife, Mrs. Beatrice Schecter Duke... . [§] Second — To my brother, Mr. Harry Duke, . . . I leave the sum of: One dollar ($1.00) and no more. [J] Third — Should my wife Beatrice Schecter Duke and I die at the same moment, myestate is to be equally divided — [§] One half is to be donated to the City of Hope in the name and loving memory of mysister, Mrs. Rose Duke Radin. [{] Onehalf is to be donatedto the Jewish National Fund to plant trees in Israel in the names and loving memory of my mother and father — [{] Bessie and Isaac Duke.” Irving indicated he had intentionally omitted all other persons, whetherheirs or otherwise, not specifically mentioned, and specifically disinherited all persons claiming to be his heirs. Finally, he included ano contest clause, which provided that “[i]f any heir, devisee or legatee, or any other person 1 Because the testator and his wife, Beatrice, share the same surname, wereferto them bytheirfirst names to avoid confusion. No disrespect is intended. 2 or persons, shall either directly or indirectly, seek to invalidate this Will, or any part thereof, then I hereby give and bequeath to such person or persons the sum of one dollar ($1.00) and no more,in lieu of any other share or interest in my estate.” In August 1997, Irving drafted a holographic codicil that stated: “We hereby agree that all of our assets are community property.” Beatrice, Irving’s wife, died in July 2002. Irving died in November2007, without children, predeceased children, or issue. A Los Angeles Deputy Public Administrator found Irving’s will in his safe deposit box at his bank, and the will was admitted to probate. Irving’s estate was valued in excess of $5 million. Respondents Seymour and Robert Radin are Irving’s sole surviving relatives; they are his nephews,the sons of Irving’s sister, Rose Duke Radin. In March 2008, COHand JNFfiled a petition for probate and for letters of administration with will annexed. They requested the appointment of Matthew Bernstein, an employee of JNF, as administrator. The requested letters were issued and filed in May 2008, and Bernstein was appointed as the administrator with will annexed. In October 2008, the Radinsfiled a petition for determination of entitlement to estate distribution, and for removal of Bernstein as administrator. They agreed the will was valid, but argued that the condition under which COH and JNF were to take—if Irving and Beatrice died at the same moment—hadnot beensatisfied. The will did not addressdistribution of the estate where, as had occurred, Beatrice predeceased Irving by several years. The Radins contendedthat the result was a complete intestacy, and the estate should therefore pass to themselvesas Irving’s closest living relatives. The Radins moved for summary judgment. COH filed opposition to the motion, in which JNF and Bernstein joined. They asserted in opposition that the trial court should consider extrinsic evidence of Irving’s testamentary intent. To wit, in August 2003, Irving invited a seniorgift planning officer for City of Hope to his home. He executed a “City of Hope Gift Annuity Agreement” and gave the COHrepresentative checkstotaling $100,000. On January 7, 2004, he did the same thing. During this second meeting, he told the COH representative that he was “‘leaving his estate to City of Hope and to 3 Jewish National Fund.’” It was the representative’s impression from their conversation that Irving had already prepared a will that included gifts to COH and JNF,notthat he intended to do so in the future. Later the same month, on January 30, 2004, Irving once again executed a charitable gift annuity agreement, and gave the COHrepresentative checkstotaling $100,000. The Radinsfiled a reply, asserting that because the will was not ambiguous, the court was not permitted to consider extrinsic evidence. Thetrial court initially denied the motion for summary judgmentfor reasons not relevant here. The Radinsfiled a motion for reconsideration. Thetrial court granted the motion for reconsideration, and thereafter ordered entry ofjudgmentin favor of the Radins. The court found that the will was not ambiguous or uncertain, and therefore the court could not resort to extrinsic evidence in orderto ascertain the intent of the testator. In reaching its conclusions, the court relied on Es/ate ofBarnes (1965) 63 Cal.2d 580 (Barnes). We shall discuss Barnes in some detail below because we concludethatit governs the outcomein this case. This timely appeal followed. DISCUSSION L. Standard of Review “Under summaryjudgmentlaw, any party to an action, whetherplaintiff or defendant, ‘may move’ the court ‘for summary judgment’ in his favor on a cause of action (i.e., claim) or defense (Code Civ. Proc., § 437c, subd. (a))—a plaintiff ‘contend[ing] . . . that there is no defense to the action,’ a defendant ‘contend[ing] that the action has no merit’ (ibid). The court must ‘grant[]’ the ‘motion’ ‘if all the papers submitted show’that ‘there is notriable issue as to any material fact’ (id, § 437c, subd. (c))—thatis, there is no issue requiring a trial as to any fact that is necessary underthe pleadings and, ultimately, the law [citations]—andthat the ‘moving party is entitled to a 4 judgment as a matter of law’ (Code Civ.Proc., § 437c, subd. (c)).” (Aguilar v. Allantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “In moving for summary judgment,a ‘plaintiff... has met’ his ‘burden of showing that there is no defense to a cause of action if he ‘has proved each element of the cause of action entitling’ him ‘to judgment on that cause of action. Oncetheplaintiff ... has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant . . . must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.’ (Code Civ. Proc., § 437c, subd. (o)(1).) (Aguilar, supra, 25 Cal.4th at p. 849.) Weindependently review an order granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) In performing our independent review of the evidence, “we apply the samethree-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgmentin its favor. Finally, if the moving party has carried its initial burden, we decide whetherthe opposing party has demonstrated the existence of a triable, material fact issue.” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.) “The interpretation of a written instrument, even thoughit involves what might properly be called questions of fact... , is essentially a judicial function to be exercised according to the generally accepted canonsof interpretation so that the purposesofthe instrument may be given effect. (See Civ. Code, §§ 1635-1661; Code Civ. Proc., §§ 1856-1866.) Extrinsic evidence is ‘admissible to interpret the instrument, but not to give it a meaning to whichit is not reasonably susceptible’ [citations], andit is the instrumentitself that must be given effect. (Civ. Code, §§ 1638, 1639; Code Civ. Proc., § 1856.)” (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.) In interpreting the will at issue here, we must observe the paramountrule thatthe will is to be construed according to the intention of the testator as expressed therein. Our “objective is to ascertain what the testator meant by the language he used.” (state of Russell (1968) 69 Cal.2d 200, 205-206, 213 (Russeil).) li. No Ambiguity Exists in the Will, and a Finding of Intestacy Is Inescapable The will under consideration here is very similar to the one construed by the Supreme Court in Barnes, supra, 63 Cal.2d 580. There, the testatrix prepared a will declaring she was married, had no children, and intended by the will to disposeof all of her property. The will providedthat all of her property was to go to her husband, who wasalso named the executor. The will further provided that “‘[i]n the event that the death ofmy husband and myself shall occur simultaneously or within two weeks of each other, or in the same commonaccidentor calamity, or under any circumstances causing doubt as to which of us survivesthe other, then, and in such event, I hereby give, devise and bequeath all of my estate ofwhatsoever kind and character and wheresoeversituated, to Robert Earl Henderson [petitioner].”” The will also included a no contest clause and a disinheritance clause. (/d. at pp. 581 & fn. 3, 582.) The husbandofthe testatrix predeceased. her by more than five years. Upon the death of the testatrix, she was survived by heirs at law that included her brothers and sisters, and a nephew and nieces(children of brothers and sisters who predeceased her). Petitioner was not an heir at law because his mother, the testatrix’s sister, survived. (Barnes, supra, 63 Cal.2d at p. 582.) Petitioner contended that he was entitled to succeed to the entire estate. Over the objection of the heirs at law, the trial court admitted evidence offered by petitioner that a special relationship existed between him and the testatrix when she executed the will (about 13 years before her death) and thereafter. The trial court concluded that there was “some uncertainty on the face of the will,” and found in favorof petitioner. The Supreme Court reversed the judgment, finding that “the will ma[d]e no disposition whatever of the property of testatrix in the event she outlived her husband by several years, as she did.” (Barnes, supra, 63 Cal.2d at pp. 583, 584.) The court observed “that a will is to be construed according to the intention of the testator, and so as 6 to avoid intestacy.” (/bid., citing former Prob. Code, §§ 101, 102.) “However, a court may not write a will which thetestator did not write. “To say that because a will does not disposeofall of the testator’s property it is ambiguous and must be construedso as to prevent intestacy, either total or partial, is to use a rule of construction as the reason for construction. But a will is never open to construction merely because it does not dispose of all of the ... property. “Courts are not permitted in order to avoid a conclusion of intestacy to adopt a construction based on conjecture as to what the testator may have intended although not expressed.” [Citation.]’ (Estate ofBeldon (1938) 11 Cal.2d 108, 112.) (Barnes, supra, at p. 583.) The court noted that the will demonstrated an awarenessby testatrix that she might have no further opportunity to designate an alternate if she and her husband died simultaneously, so she namedpetitioner. But she did not include a provision or any indication of herintentif, as occurred, she was afforded sufficient time to review thewill following her husband’s death. (Barnes, supra, 63 Cal.2d at pp. 583, 584.) If she had considered the lack of a disposition ofher property after her husband’s death, she might have chosen petitioner, or she might have relaxed her disinheritance of other relatives, or selected different beneficiaries. “Under such circumstances any selection by the courts now would be to indulge in forbidden conjecture. (See Estate ofMaxwell (1958) 158 Cal.App.2d 544, 549-551.) The declared intention oftestatrix . . . to dispose of all of her property does not authorize the courts underthe guise of construction to supply dispositive clauses lacking from the will. [Citation.]” (Barnes, supra, at pp. 583-584.) The existence of the disinheritance clause did not alter the court’s conclusion. “It is settled that a disinheritance clause, no matter how broadly orstrongly phrased, operates only to prevent a claimant from taking underthe will itself, or to obviate a claim of pretermission. Such a clause does not and cannot operate to prevent the heirs at law from taking underthe statutory rules of inheritance when the decedent has diedintestate asto any orall of his property. [Citations.]” (Barnes, supra, 63 Cal.2d at p. 583.) The court further concluded that the extrinsic evidence offered by petitioner about his relationship with the testatrix “d[id] not assist in interpreting the will. It may serve to 7 explain why petitioner was namedasalternate beneficiary in the particularsituation envisaged by paragraph Sixth of the will... , but that situation did not arise. The extrinsic testimony sheds no light on the intention of testatrix with respect to the situation which actually had comeinto existence by the deathof testatrix’ husband somefive years before her own death.” (Barnes, supra, 63 Cal.2d at pp. 582-583.) On the subject of extrinsic testimony, the court cited former Probate Code section 105, which provided that ““when an uncertainty arises upon the face of a will, as to the application of any ofits provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, excluding . . . oral declarations’ of the testator as to his intentions.” (/d. at p. 582,fn. 6.) Just as the court concluded in Barnes, Irving’s will is 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 madenodisposition whatsoeverofthe property in the event Irving outlived his wife by several years, as eventually occurred. However, this omission does not render the will ambiguous. We cannot engage in conjecture as to what the testator may have intended but failed to express in orderto avoid a conclusion of intestacy. (Barnes, supra, 63 Cal.2d at pp. 583-584.) Furthermore, the existence in Irving’s will of a disinheritance clause does not prevent respondents from taking underthe statutory rules of inheritance where, as here, the decedent must be considered as having died intestate. (/d. at p. 583.) In summary, we conclude that the Barnes decision is directly on point and controls our decision here. We decline, as we must, appellants’ invitation to look to cases from other states in which courts construed wills similar to the one now before us as implying a testamentary intent not stated on the face of the will. (Auto Equity Sales, Inc. y. Superior Court (1962) 57 Cal.2d 450, 455.) 2 Although the will in Barnes included more extensive, redundant formulations of the notion of simultaneous or near-simultaneous death, we conclude the language “at the same moment”is the functional equivalent of the language used in Barnes, 8 If. No DominantDispositive Plan Exists to Warrant Finding an Implied Gift Appellants argue that “the general scheme of Irving’s will produces the unyielding conviction that Irving intended to divide his estate between COH and JNF,rather than haveit pass by intestacy to his estranged nephews.” Theyrely on the case ofBrock v. Hall (1949) 33 Cal.2d 885 (Brock), which the Barnes court considered but distinguished, stating that “[n]o such ‘dominant dispositive plan’ as referred to and held to warranta gift by implication in [Brock] . . . is demonstrated by the provisions of the will now before us.” (Barnes, supra, 63 Cal.2d at p. 584.) Weshall briefly discuss Brock in orderto demonstrate that it is readily distinguishable from the situation here. In Brock, supra, 33 Cal.2d 885, a father established an inter vivos trust for the benefit ofhis two daughters. The trust instrament provided that upon reaching the age of 18, each daughter would receive half of the net income from thetrust property, until reaching the age of 35, when each would receive half of the trust property outright. The trust instrument contained various provisionsindicating the trustor’s desired disposition of the property if, for example, either daughter died without having married, orif they died having married and leaving issue (or were married but without issue), and so forth. Before reaching age 35, the younger daughter died a widow, without issue. This precise scenario was not addressedin thetrust instrument. The trustor contendedthat, since there was no provision for an express gift to the older daughter underthese circumstances, the younger daughter’s share of the property should revert to him. The Supreme Court found applicable the law governing implied gifts in wills. In that regard, the court observed: “The implication of gifts in wills rests upon the primary rule of construction that the duty of the court in all cases of interpretation is to ascertain the intention of the maker from the instrument read as a whole andto give effect thereto if possible, andit is well settled that, where the intention to make gift clearly appears in a will, although perhaps imperfectly expressed, the court will raise a gift by implication.” (Brock, supra, 33 Cal.2d at pp. 887-888.) However, in orderto implya gift, ’the intention to make a gift [must] clearly appear[] from the instrumenttaken by its four comers and read as a whole, considering its general scheme, the property involved, and 9 the persons namedas beneficiaries .... (L'state ofFranck [(1922)] 190 Cal. 28, 31.) Although the court may not indulge in conjecture or speculation simply because the instrument seems to have omitted something whichit is reasonable to suppose should have beenprovided, a gift will be raised by necessary implication where a reading of the entire instrument produces a conviction that a gift was intended.” (Brock, supra, at p. 889,italics added.) The court concluded that an implied gift to the surviving daughter was necessarily implied in the trust instrument. The instrument did not provide for a reversion to the trustor under any contingency, and the general plan showedthe trustor intended a surviving daughterto haveail the property in the eventthe other specified beneficiaries (surviving husbandsor issue) were not in existence. The apparent purpose of the trust was “to provide first for each daughter and her issue, and second, in case of her death withoutissue, for those next entitled to her bounty, namely, hersister and a surviving husband,if any.” (/d. at pp. 890-891.) The court concludedthat “the probability that the trustor intended to make gift in this contingency is so s(rong as to nullify the existence ofany otherpossible intent.” (id. at p. 892,italics added.) Irving’s will cannot be said to necessarily entail a dominantdispositive plan to leave his property to JNF and COHunderanypossible scenario. Its similarity to the will imvolved in Barnes, supra, is evident, and the Supreme Court’s finding Brock to be distinguishable is controlling here. IV. Extrinsic Evidence Is Inadmissible Where the Meaningof a Will Is Clear Appellants contend that the decision in Barnesis no longer controlling because the court relied on a section of the Probate Code regarding extrinsic evidence, which was repealed in 1985. The statute at issue was formerProbate Code section 105, which ceeprovided that “‘when an uncertainty arises upon the face of a will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the wordsofthe will, taking into view the circumstances under which it was made, excluding . . oral declarations’ of the testator as to his intentions.” (Barnes, supra, 63 Cal.2d at p. 582, fn. 6.) Appellants assert that under current law (i.e., the general rules of evidence), they 10 were permitted to introduce extrinsic evidence to demonstrate what Irving meantbythe words used in his will, including his statement that he was leaving his estate to COH and INF. Tn fact, the Barnes court did considerthe existence of extrinsic evidence regarding the relationship between the testatrix and petitioner.? However, the court found that such evidence did notassist in interpreting the will. “The extrinsic testimony sheds no light on the intention oftestatrix with respect to the situation which actually had comeinto existence by the death of testatrix’ husband somefive years before her own death.” (Barnes, supra, 63 Cal.2d at pp. 582-583.) The admission of extrinsic evidence in matters involving wills is addressed in Probate Code section 6111.5, which provides as follows: “Extrinsic evidenceis admissible . . . to determine the meaningof a will or a portion of a will ifthe meaning is unclear.” (Italics added.) As we have previously stated, there was no ambiguity in Irving’s will that would permit the introduction of extrinsic evidence to explain it. Appellants point to cases which hold that extrinsic evidence is always admissible, at least provisionally, to establish a latent ambiguity in a testamentary instrument. For example, the court in Russell, supra, 69 Cal.2d 200, 207, stated as follows: “Extrinsic evidence always may be introducedinitially in order to show that underthe circumstances of a particularcase the seemingly clear language of a will describing either the subject of or the object of the gift actually embodies a latent ambiguity for it is only by the introduction of extrinsic evidence that the existence of such an ambiguity can be shown. Once shown, such ambiguity may be resolved by extrinsic evidence. [Citations.]” In Russell, the holographic will stated, “‘I leave everything I own Real & Personal to Chester H. Quinn and Roxy Russell.” (/d at p. 203.) Extrinsic evidence was found to be properly admitted to establish that Roxy Russell was a dog, with the result that the court foundthatportion of the testamentary gift was void. (/d. at p. 214.) 3 The testatrix’s oral declarations regarding her intentions were apparently not offered into evidence, in accordance with Probate Code section 105. 11 The extrinsic evidence offered here did not serve to establish the existence of a latent ambiguity m the will at issue. Rather, there was simply an unambiguousfailure on the face of the will to include a testamentary provision for the circumstancesthat occurred. Irving’s purported oral declaration of intent cannot be usedto fill in omitted termsof the will. His statement cannot be usedto prove that his dominantdispositive purpose was to leave everything to the charities, because the meaning of the will was not unclear. We are mindful of the fact that the ultimate disposition of Irving’s property, seemingly appropriate whenstrictly examining only the language of his will, does not appear to comport with his testamentary intent. It is clear that he meantto disposeof his estate through his bequests, first to his wife and, should she predecease him, then to the charities. It is difficult to imagine that after leaving specific gifts to the charities in the names and memories of beloved family members,Irving intended them to take effect only in the event that he and his wife died “at the same moment.” The question is whether extrinsic evidence should always be inadmissible when the language in a will is otherwise clear onits face. The Barnes court held the answeris “yes.” In reaching this conclusion, it found the proffered extrinsic evidence did notassist in interpreting the will. In this regard, the court stated, “The extrinsic testimony sheds no light on the intention oftestatrix with respect to the situation which actually had come into existence by the death of testatrix’ husband some five years before her own death.” (Barnes, supra, 63 Cal.2d at pp. 582-583.) However, that is not the case here, as there is evidenceofIrving’s intentionsafter the death of his wife. After she died, Irving gave substantial amounts ofmoney to the COH andtoldits representative that he was “leaving his estate to City of Hope and to Jewish National Fund.” The representative believed Irving had already made such a provision in a testamentary instrument. A few weeksafter making that statement, Irving again delivered checks to the COH’s representative. Recognizing “that a will is to be construed accordingto the intention of the testator, and so as to avoid intestacy”(a. at p. 583), perhaps the rule regarding the admission of extrinsic evidence should be more flexible whena testator’s conductafter 12 an event that would otherwise cause his will to be ineffective brings into question whether the written word comports with his intent. Barnes takes that option out of our hands. Perhapsit is time for our Supreme Court to consider whether there are cases where deeds speak louderthan words when evaluating an individual’s testamentary intent, DISPOSITION The judgmentis affirmed. Costs on appeal are awarded to respondents. CERTIFIED FOR PUBLICATION SUZUKAWA,J. Weconcur: EPSTEIN,P.J. MANELLA,J. 13 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 5900 Wilshire Boulevard, 12th Floor, Los Angeles, California 90036. On January 17, 2012, I served the foregoing documentdescribed as: PETITION FOR REVIEW ontheparties in this action by serving: Richard Caplan Wilfrid Roberge 8350 Wilshire Boulevard, Suite 200 Donahue Gallagher Woods Beverly Hills, California 90211 1999 Harrison Street, 25th Floor Counsel for Estate of Duke Administrator Oakland, California 94612 Counsel for Respondents Robert and Seymour Radin Margaret Lodise Clerk for Sacks, Glazier, Franklin & Lodise The Honorable Mitchell Beckloff 3500 South Grand Avenue, Suite 3500 Los Angeles Superior Court Los Angeles, California 90071 111 North Hill Street Counsel for Respondents Los Angeles, California 90012 Robert and Seymour Radin (LASC Case No. BP108971) Clerk of the Court California Court of Appeal Second Appellate District, Division Four 300 S. Spring Street, Floor 2 North Tower Los Angeles, California 90013-1213 (Court of Appeal Case No. B227954) (X) By Envelope: by placing a true copy thereof enclosed in sealed envelopes addressed as above and delivering such envelopes: (X) By Mail: As follows: I am “readily familiar” with this firm’s practice of collection and processing correspondencefor mailing. Under that practice, it would be deposited with United States Postal Service on that same day with postage thereonfully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motionofparty served, service is presumedinvalid if postal cancellation date or postage meter date is more than | day after date of deposit for mailing in affidavit. Executed on January 17, 2012, at Los Angeles, California. (X) (State) I declare under penalty of perjury underthe laws ofthe State of California that the foregoingis true and correct. (ice FAti. Charice 0. Lawrie