Wilkin v. Nelson

Case Number: B294530

Court: Cal. Ct. App.

Date Filed: 2020-02-26

Case Brief – Wilkin v. Nelson

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA
Date: 2025-09-04
Case Number: B294530
Disposition: The Court dismissed the appeal concerning the award of attorney fees and affirmed, in all other respects, the probate court’s findings and order for judgment; the appellant is ordered to pay the respondent’s costs on appeal.

Holding

The court held that, under the clear‑and‑convincing‑evidence standard articulated in Estate of Duke, the probate court properly equitably reformed Hanako Nelson’s pour‑over will to limit its residue clause to her separate‑property assets, and that the court’s findings on standing, community‑property allocation, and the non‑appealability of the attorney‑fee award were supported by substantial evidence and therefore affirmed.

Narrative

Lead:
In Wilkin v. Nelson, the California Court of Appeal affirmed a trial court’s equitable reformation of a pour‑over will, reinforcing the modern trend that a testator’s subjective intent outweighs formal drafting errors—even when the will’s language appears unambiguous. The decision also clarified the limited appellate reach over attorney‑fee awards tied to lis‑pendens expungement and underscored the strict standing requirements for a successor trustee to assert a surviving‑spouse’s community‑property claims.

Procedural backdrop:
William and Hanako Nelson married in 1981 and each owned separate‑property residences. In 2000, Hanako executed a revocable living trust that transferred her Goleta rental home—her separate‑property asset—to her sons, Gary and Jay Wilkin. Simultaneously, a standard pour‑over will was prepared by attorney Stephen McKee’s firm, ostensibly to “cover any assets…in her case, separate property assets…that were only in her name,” and to pour the residue of her estate into the trust. Hanako signed the trust, grant deed, and will without reading the will’s language. She died in 2016; Gary, as successor trustee, petitioned the Santa Barbara Superior Court to confirm that all of Hanako’s assets—both separate and community—were trust property under the pour‑over will. William, the surviving spouse, counter‑claimed that the will should be reformed to reflect Hanako’s intent to transfer only her separate‑property assets, and he sought restitution of community‑property funds he had moved into his own trust.

After a three‑day evidentiary hearing, the trial court found clear and convincing evidence that the pour‑over will contained a drafting mistake and reformed the residue clause to apply solely to Hanako’s separate property. It affirmed Gary’s ownership of the Goleta home, ordered William to return $17,000 withdrawn from a Wells Fargo account, and declared the Nelson community estate to belong entirely to William under Probate Code §§ 100 and 6401. The court also granted William’s motion to expunge a lis‑pendens on his Castro Valley residence and awarded him $4,500 in attorney fees pursuant to Code of Civil Procedure §§ 405.38‑405.39. Gary appealed the findings on reformation, the community‑property allocation, and the fee award.

Issues on appeal:

1. Whether the trial court erred in applying Estate of Duke to reform the pour‑over will.
2. Whether Gary, as successor trustee of a separate‑property trust, possessed standing to assert a Section 1101 breach‑of‑fiduciary‑duty claim on behalf of his mother’s community‑property interest.
3. Whether the award of attorney fees tied to the lis‑pendens expungement is appealable.

Court’s analysis – Reformation of the will:
The appellate court reiterated that Duke permits equitable reformation when (a) clear and convincing evidence shows a drafting mistake, and (b) the same standard establishes the testator’s specific intent at the time of execution. The court emphasized that Duke does not limit its holding to specific devises; a general residue clause, like Hanako’s, falls squarely within the doctrine. Substantial evidence—testimony from McKee, his assistant Mimi Warga, and expert Carl Tucker Cheadle—demonstrated that Hanako’s expressed intent was “just trust for home,” i.e., to place only the Goleta rental into the trust. The intake questionnaire, the absence of any discussion of community assets, and the fact that the trust itself labeled the transferred property as “settlor’s separate property” all corroborated this intent. Moreover, the pour‑over will was drafted by McKee as a routine accompaniment to any trust, not as a vehicle for community‑property transfer. The court concluded that the trial court’s finding of a drafting mistake and its equitable reformation were well‑founded and within the court’s discretion.

Standing under Section 1101:
Section 1101 of the Family Code allows a spouse to sue for breach of fiduciary duty that impairs the other spouse’s undivided one‑half interest in the community estate. The appellate court held that Gary, acting solely as successor trustee of a separate‑property trust, lacked standing to assert a claim on behalf of his mother’s community‑property interest because he was not appointed personal representative of Hanako’s estate. The trial court’s determination that Gary had not obtained a court order conferring such standing was affirmed. The appellate court further noted that Gary’s failure to raise the standing issue in his opening brief constituted a waiver, rendering his late‑filed arguments in the reply brief procedurally barred.

Attorney‑fee award and appealability:
Under CCP §§ 405.38 and 405.39, an order awarding fees on a motion to expunge a lis‑pendens is not appealable; review is limited to a petition for writ of mandate. Because Gary’s writ petition did not challenge the fee award, the appellate court lacked jurisdiction to consider it and therefore dismissed the appeal on that ground. The court’s dismissal of the fee‑award appeal was consistent with precedent and statutory scheme.

Disposition:
The appellate court dismissed the appeal concerning the attorney‑fee award and affirmed the probate court’s remaining findings and judgment. William was awarded his costs on appeal.

Implications for probate practice:
Wilkin reinforces that California courts will not hesitate to reform a will when extrinsic evidence—particularly contemporaneous statements, questionnaires, and the surrounding estate‑planning context—demonstrates a clear divergence between a testator’s intent and the instrument’s language. Practitioners should therefore ensure that clients receive explicit counseling on the effect of pour‑over wills, especially when community property is involved, and that any “general residue” language is carefully aligned with the client’s actual plan. The decision also serves as a cautionary tale about procedural diligence: parties must raise standing and jurisdictional objections in opening briefs, or risk waiver. Finally, the ruling confirms that fee awards tied to lis‑pendens expungement remain insulated from ordinary appellate review, directing litigants to the writ‑of‑mandate route for any challenge.

Unresolved questions:
While the court clarified the standard for equitable reformation, it left open how courts will treat similar “general residue” clauses when the testator’s intent is ambiguous but the drafting attorney routinely includes pour‑over provisions. Additionally, the decision did not address whether a surviving spouse could seek restitution of community assets that were inadvertently transferred into a trust before the decedent’s death—a scenario that may arise as more couples employ joint trusts with pour‑over wills.

Referenced Statutes and Doctrines

• Probate Code §§ 21117(a) & (b) – Specific vs. general devises.
• Probate Code §§ 100 & 6401 – Distribution of community property upon death of a spouse.
• Family Code § 1101 – Remedies for breach of fiduciary duty affecting community property.
• Code of Civil Procedure §§ 405.38 & 405.39 – Attorney‑fee awards on lis‑pendens motions and their non‑appealability.
• Estate of Duke, 61 Cal.4th 871 (2015) – Standard for equitable reformation of wills.
• Estate of Goetz, 253 Cal.App.2d 107 (1967) – Weight of attorney testimony in will interpretation.
• Estate of O’Connell, 29 Cal.App.3d 526 (1972) – Dominant purpose doctrine in interpreting testamentary schemes.
• Estate of Goyette, 123 Cal.App.4th 67 (2004) – Subordination of specific language to overall plan.
• Multani v. Knight, 23 Cal.App.5th 837 (2018) – Substantial evidence standard in probate appeals.
• Paulus v. Bob Lynch Ford, Inc., 139 Cal.App.4th 659 (2006) – Waiver of issues not raised in opening brief.
• Campos v. Anderson, 57 Cal.App.4d 784 (1997) – Limitations on raising new arguments in reply briefs.