Testimonies of Trust and Estate Expert Witness Tucker Cheadle

An unambiguous will or trust can be changed after death and mean something very different than as it was written.

Ambiguities may occur in many ways, and now can be reformed to reflect the intent following the rulings in the two cases below:

1. People prepare handwritten plans and make mistakes. (Estate of Duke below)


2. Standard forms are used without knowing their limitations. (Wilkin v. Nelson below)

The Estate of Duke 41 Cal.2nd 509 (2015) went all the way to the California Supreme Court to resolve whether an unambiguous self-prepared or holographic will could be reformed to change a provision relating to distribution. The ruling by the California Supreme Court changed California law by stating that an unambiguous provision could be reformed as to the real intent if there was clear and convincing evidence both of a mistake in the intent expressed in the will at the time of drafting and there was clear and convincing evidence of the specific intent at the time it was drafted. Thus, a mistake is reformed and the will changed if both are shown by clear and convincing evidence. This change in the law was made although there were over 100 years of case law indicating that a will was enforced in accord with its terms without or without a mistake because testimony as to intent was not allowed to change any provision. The result is that an unambiguous provision can be rewritten because the court now allows the testimony of a trust and estates expert witness when the trust expert witness provides clear and convincing testimony, as Tucker Cheadle did in this case.

In Wilkin v Nelson 45 Cal.App.5th 802 (2018), a case that followed Estate of Duke, the court allowed testimony by a trust expert witness who stated that an unambiguous provision included in every will could be ignored in the will in question because it was determined that the provision was not intended to be there. What happened was the court determined that the decedent only knew she wanted to transfer her house to her sons of a prior marriage. She didn’t know if she had any potential community property interest in the property of her second husband. Her sons took the house and then sued her second husband for any community property she may have. I, Tucker Cheadle, testified as the trust expert witness. A trust expert witness was allowed to testify as to the standard of care for drafting estate planning documents. Tucker Cheadle, the trust expert witness, said it was not consistent that she transfers community property to her trust because it was not mentioned to her attorney, it was not listed in her trust, and she never said she had any community property. The drafting attorney did not have any recollection of her intent. The judge stated that if the desire was to avoid probate with a living trust, then a claim against community property would involve probate, the process avoided with a transfer of the house to the trust.