Metropolitan News-Enterprise


Tuesday, December 6, 2011


Page 1


C.A. Finds Fault With Will Leaving Millions to Charity

Justices Hold Testator’s Words, Not His Intent, to Be Dispositive


By SHERRI M. OKAMOTO, Staff Writer


The estranged nephews of a local man who died in 2007 were entitled to inherit his $5 million estate, even though his holographic will purported to leave his assets to the Jewish National Fund and City of Hope, the Court of Appeal for this district ruled yesterday.

Div. Four acknowledged that Irving Duke had plainly disinherited anyone not mentioned in his will—such as his nephews—and apparently wanted to leave his estate to charity, but said the ultimate disposition of property in favor of Robert and Seymour Radin was mandated by the unambiguous failure on the face of his will to include a testamentary provision for the circumstances of his death. 

Duke had prepared his holographic will in 1984, in which he purported to devise all of his property to his wife, with the exception of “the sum of One dollar ($1.00) and no more” left to his brother.

If he and his wife were to “die at the same moment,” Duke provided, “my estate is to be equally divided” with one half donated to the City of Hope in the name of his sister, and the other half given to the Jewish National Fund to plant trees in Israel in the names of his parents.

Duke indicated he had intentionally omitted all other persons, whether heirs or otherwise, not specifically mentioned, and specifically disinherited all persons claiming to be his heirs.

His wife died in 2002, and Duke died five years later. After his death, a Los Angeles deputy public administrator found his will in his safe deposit box at his bank, and the will was admitted to probate. 

The Radins, the sons of Duke’s sister and his sole surviving relatives, subsequently filed a petition for determination of entitlement to estate distribution and moved for summary judgment.

They argued that the charitable organizations were only eligible to take if Irving and his wife simultaneously met their demise. The Radins contended that the will did not address distribution of the estate where Duke survived his wife, as had occurred, and so the result was a complete intestacy under which the estate passed to them.

The charities opposed the motion, asserting that the trial court should consider extrinsic evidence of Irving’s testamentary intent, which included his statement to a City of Hope representative that he was “leaving his estate to City of Hope and to Jewish National Fund.”

Los Angeles Superior Court Judge Mitchell L. Beckloff found that the will was not ambiguous, and therefore, that the proffered extrinsic evidence was inadmissible. He then ordered entry of judgment in favor of the Radins.

Writing for the appellate court, Justice Steven C. Suzukawa agreed that no ambiguity existed in the will and said the finding of intestacy was inescapable since a court “cannot engage in conjecture as to what the testator may have intended but failed to express in order to avoid a conclusion of intestacy.”

Suzukawa said this omission did not render the will ambiguous, and that Duke’s purported oral declaration of intent “cannot be used to fill in omitted terms of the will” since the meaning of the will itself was not unclear.

He added that the disinheritance clause did not prevent the Radins from taking under the statutory rules of inheritance where, as here, the testator was considered as having died intestate.

The justice said he was “mindful of the fact that the ultimate disposition of Irving’s property, seemingly appropriate when strictly examining only the language of his will, does not appear to comport with his testamentary intent” since it was “clear that he meant to dispose of his estate through his bequests, first to his wife and, should she predecease him, then to the charities.”

Suzukawa suggested that “perhaps the rule regarding the admission of extrinsic evidence should be more flexible when a testator’s conduct after an event that would otherwise cause his will to be ineffective brings into question whether the written word comports with his intent,” but said the court was bound by precedent.

“Perhaps it is time for our Supreme Court to consider whether there are cases where deeds speak louder than words when evaluating an individual’s testamentary intent,” he concluded.

Presiding Justice Norman L. Epstein and Justice Nora M. Manella joined Suzukawa in the decision.

The charities were represented by Susan Cooley of Oldman, Cooley, Sallus, Gold, Birnberg & Coleman; Reynolds Cafferata of Rodriguez, Horii, Choi & Cafferata; and Gerald Serlin and Douglas Benedon of Benedon & Serlin.

Margaret Lodise of Sacks, Glazier, Franklin & Lodise served as counsel for the Radins.

The case is Estate of Duke, B227954.


Copyright 2011, Metropolitan News Company