Case Number: KC069458 Hearing Date: October 17, 2018 Dept: O

Defendant Myers’s demurrer to first amended complaint is OVERRULED. Defendant is ordered to file and serve an Answer within 10 days.

Defendant Myers demurs to the 3rd cause of action on the ground that it fails to state facts sufficient to constitute a cause of action.

3rd CAUSE OF ACTION

REFORMATION: “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.” (CC 3399.)

(a) The intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument. (b) The rules of construction in this part apply where the intention of the transferor is not indicated by the instrument. (c) Nothing in this section limits the use of extrinsic evidence, to the extent otherwise authorized by law, to determine the intention of the transferor. (Prob. Code 21101.)

The FAC alleges at Pars. 7-11:

In 2016, Plaintiff and the Decedent entered into an oral contract whereby Plaintiff promised to assist in the care for decedent until his death, and in return decedent promised to write Plaintiff into his will or trust as a beneficiary of the real estate located at 1820 Walnut Street, La Verne, CA. Plaintiff cared for decedent, and decedent died testate on 3/1/17. However, decedent failed amend the trust to leave the property to Plaintiff.

Citing Ike v. Doolittle (1998) 61 Cal.App.4th 51 and In re Estate of Russell (1968) 69 Cal.2d 200, Defendant contends that the trust instrument contains no ambiguity, and therefore, extrinsic evidence may not be considered to ascertain the testator’s intent.

However, the Supreme Court recently held in Estate of Duke (2015) 61 Cal.4th 871 that the categorical bar on reformation of wills is not justified, and an unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and also establishes the testator’s actual specific intent at the time the will was drafted.

In Reply, Defendant contends that Estate of Duke is distinguishable on its facts because the will in that case provided for disposition of the property if the decedent’s wife outlived him or if both died at the same time; but the will did not contain any provision addressing the disposition of the property if decedent outlived his wife. Defendant contends that there is no such “mistake” or “scrivener’s error” here.

However, the allegations in the Complaint must be accepted as true, no matter how unlikely. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

Here, paragraph 18 alleges that “due to a mistake” by Defendant Myers, the trustee, “and a scrivenor’s error,” the trust did not include the intended gift.

The court must accept the allegation as true, and allow Plaintiff to submit “clear and convincing” evidence at trial to establish that the trust contains a mistake in the expression of the testator’s intent.

Accordingly, demurrer is OVERRULED. Defendant is ordered to file and serve an Answer within 10 days.