BILL NUMBER: SB 1575	INTRODUCED
	BILL TEXT


INTRODUCED BY   Senator Sher

                        FEBRUARY 20, 2002

   An act to amend Section 21351 of the Probate Code, relating to
wills and trusts.


	LEGISLATIVE COUNSEL'S DIGEST


   SB 1575, as introduced, Sher.  Wills and trusts: prohibited
transferees:  exceptions.
   Existing law, with specified exceptions, invalidates a donative
transfer to the person who drafted the instrument, or to a person who
is related by blood or marriage, or an employee of the drafter,
among others.  Existing law excepts from these provisions a transfer
where the transferor is related by blood or marriage to, or a
cohabitant with, the transferee or the person who drafter the
instrument.  Existing law also excepts transfers where the instrument
is reviewed by an independent attorney, as specified, and provides a
form of certificate for this purpose, and excepts a transfer that is
approved by a court, as specified, among others.
   This bill would include within the above-described exceptions
domestic partners, as specified, and any person who lived with the
transferor for at least 6 months.  The bill would require an
independent attorney making a review of an instrument to be excepted
from the provisions described above to attempt to determine if the
intended transfer is the result of fraud, menace, duress, or undue
influence, and would revise the certificate the attorney is required
to deliver to document his or her review.  The bill would delete the
exclusion of evidence of specified interested parties from a court
determination of whether a transfer was a product of fraud, menace,
duress, or undue influence.  The bill would revise the definition of
related by blood or marriage for the purpose of the above-described
exceptions.  The bill would create new exceptions for any transfer
that does not exceed $3,000 and for any transfer made by an
instrument executed by a nonresident of California that was not
signed in California.
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  no.
State-mandated local program:  no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 21351 of the Probate Code is amended to read:
   21351.  Section 21350 does not apply if any of the following
conditions are met:
   (a)  (1)  The transferor is related by blood or marriage
to  , or is a cohabitant with,  the transferee or
the person who drafted the instrument.  
   (2) The transferor is the registered domestic partner, pursuant to
Division 2.5 (commencing with Section 297) of the Family Code, of
the transferee or the person who drafted the instrument.
   (3) The transferor is a person who lived with the transferee for
at least six months.
   (4)  This subdivision shall retroactively apply to an
instrument that becomes irrevocable on or after July 1, 1993.
   (b) The instrument is reviewed by an independent attorney who (1)
counsels the client (transferor) about the nature  of his or
her   and consequences of the  intended transfer
 , (2) attempts to determine if the intended consequence is the
result of fraud, menace, duress, or undue influence,  and
 (2)   (3)  signs and delivers to the
transferor and the drafter  a   an original
 certificate in substantially the following form:


                 "CERTIFICATE OF INDEPENDENT REVIEW
I, _______________________________________________, have reviewed
                (attorney's name)
__________________________________________ and counseled my client,
       (name of instrument)
______________________________, on the nature  and consequences
 of the
         (name of client)
transfer, or transfers, of property to
__________________________________________
                                        (name of potentially
disqualified person)

  contained in  such   the  instrument.  I
am so disassociated from the interest
  of the transferee as to be in a position to advise my client 
independently, 
  impartially  ,  and confidentially as to the consequences
of the transfer.
  On the basis of this counsel, I conclude that the transfer, or
transfers, in
   such   the  instrument that otherwise
might be invalid under Section 21350 of
  the Probate Code are valid because  such   the
 transfer, or transfers, are not
  the product of fraud, menace, duress, or undue influence.

  __________________________________      __________________________"

          (Name of Attorney)                        (Date)
Any attorney whose written engagement signed by the client is
expressly limited solely to the preparation of a certificate under
this subdivision, including the prior counseling, shall not be
considered to otherwise represent the client.
   (c) After full disclosure of the relationships of the persons
involved, the instrument is approved pursuant to an order under
Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of
Division 4.
   (d) The court determines, upon clear and convincing evidence
 , excluding the testimony of any person described in
subdivision (a) of Section 21350,  that the transfer was not
the product of fraud, menace, duress, or undue influence.  If the
court finds that the transfer was the product of fraud, menace,
duress, or undue influence, the disqualified person shall bear all
costs of the proceeding, including reasonable attorney's fees.
   (e) Subdivision (d) shall apply only to the following instruments:
  
   (A) Any instrument executed by a person who was not a resident of
this state at the time the instrument was executed.
   (B)  
   (1)  Any instrument other than one making a transfer to a
person described in paragraph (1) of subdivision (a) of Section
21350.  
   (C)  
   (2)  Any instrument executed on or before July 1, 1993, by a
person who was a resident of this state at the time the instrument
was executed.
   (f) The transferee is a federal, state, or local public entity, an
entity that qualifies for an exemption from taxation under Section
501(c)(3) or 501(c)(19) of the Internal Revenue Code, or a trust
holding an interest for this entity, but only to the extent of the
interest of the entity, or the trustee of this trust.  This
subdivision shall retroactively apply to an instrument that becomes
irrevocable on or after July 1, 1993.
   (g) For purposes of this section, "related by blood or marriage"
shall include persons within the  seventh  
fifth  degree  or heirs of the transferor  .  
   (h) The transfer does not exceed the sum of three thousand dollars
($3,000).
   (i) The transfer is made by an instrument executed by a
nonresident of California that was not signed within the California.