Before he died in 1992, Norbert Eimer set up a family trust. Upon his and his wife’s death, everything was to go to their kids. A Power of Appointment allowed each child to pass on their inheritance to others through a will, “specifically referring to and exercising this Power of Appointment.”

Ms. Eimer died in 2011. A year later, son Timothy scribbled out a three-page version of his last wishes that attempted to give his share of the trust to Charles and Caryn Saletta. In that holographic will, he ignored his father’s specific instructions to include the Power of Appointment’s reference in his will. Four months later, Timothy died after being hit by a car.

His brother James, the trustee, asked the Sonoma County probate court for guidance: It agreed that Timothy did not validly exercise the Power of Appointment in the will. The court also declined the Salettas’ request to amend the will to conform to Timothy’s intent even as it noted that the power of appointment was “buried deep in that trust’s 30 plus pages.”

The Salettas appealed, arguing that California law allows a court to consider extrinsic evidence of a testator’s intent when it interprets a will. The court acknowledged that Timothy intended to give his share of the trust to the Salettas—but then said that wasn’t the issue here.  Instead, it referred to Sections 630, 631, and 632 of the Probate Code, which require that the court enforce Norbert’s requirement of specific reference to the Power of Appointment. To rule otherwise would undercut the provisions of these sections.

“It should go without saying that a donor’s intent alone cannot trump the requirements of the law,” the court concluded.

Do-it-yourselfers can face harsh consequences when it comes to the law. Don’t leave a legal mess by preparing estate planning documents yourself. Seek out the guidance of an experienced estate attorney who knows what needs to be said to make your final wishes known. Estate of Eimers v Saletta, California, Second District, Div. Eight, B295602 (2020)

Note to our lawmakers:  In light of the trend to allow extrinsic evidence instead of strict construction of wills, it’s time to update the Probate Code to prevent this result in the future.

About the Author:

John O’Grady leads a full-service estate and trust law firm in San Francisco. His practice includes Estate Planning & Administration, Probate and Trust Litigation.