Part II: Omissions Do Not Make a Will Ambiguous

In Radin v. Jewish National Fund, City of Hope (COH) and the Jewish National Fund (JNF) appealed the trial court's decision upholding the will's unambiguity and therefore, since the condition under which the two charities were to take under the will did not come to pass, then the result is a complete intestacy. Upon review of the case, the Court of Appeal upheld the trial court's decision relying on the Estate of Barnes (1965) 63 Cal.2d 580 to govern the outcome of the case.

The Court of Appeal noted that the will under consideration is very similar to the one construed by the Supreme Court in the Estate of Barnes. In Barnes, the will provided that in the event the death of the testator and her husband should occur simultaneously or within 2 weeks of each other, then her entire estate will go to her nephew, Robert Earl Henderson. However, the husband predeceased the testator by more than five years. In this case, the Supreme Court ruled that the testator did not indicate how the property was going to be disposed in the event that she outlived her husband by several years. The Supreme Court noted "that a will is to be construed according to the intention of the testator, and so as to avoid intestacy. However, a court may not write a will which a testator did not write." Similar to Barnes, Irving Duke did not provide for disposition of his estate in the event his wife predeceased him by several years. The court added that the omission does not, however, render the will ambiguous. The court cannot engage in conjecture as to what the testator intended but failed to express in order to avoid a conclusion of intestacy. Furthermore, the no contest clause in the will does not prevent heirs at law from taking under the statutory rules of intestacy. Accordingly, relying on the Supreme Court's decision on the Estate of Barnes, the Court of Appeal affirmed the trial court's decision.

*This blog entry was not written by an Attorney and should not be construed as professional legal advice.

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