BILL NUMBER: SB 1575 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 1, 2002
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 amended, 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 to , is a cohabitant
with, 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 is a
cohabitant with, the transferee or the person who drafter
drafted 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 and is not a person who has any
of specified relationships with the donor . 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
certain interested parties , as specified,
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 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 and is not a person described in subdivision
(a) of Section 21350 .
(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 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 (3) signs and delivers to the transferor and the
drafter 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) person)
contained in 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
the instrument that otherwise might be invalid under Section 21350
of
the Probate Code are valid because 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
, but not based solely upon 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:
(1) Any instrument other than one making a transfer to a person
described in paragraph (1) of subdivision (a) of Section 21350.
(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 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.