BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 1041| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: SB 1041 Author: Harman (R) Amended: 5/6/10 Vote: 21 SENATE JUDICIARY COMMITTEE : 4-0, 5/4/10 AYES: Corbett, Harman, Hancock, Leno NO VOTE RECORDED: Walters SUBJECT : Hearsay evidence: wills and revocable trusts SOURCE : Conference of California Bar Associations DIGEST : This bill allows evidence at a hearing or trial of a statement made by an unavailable declarant that he/she made or did not make a revocable trust. ANALYSIS : Existing law provides that "hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at a trial or hearing and that is offered to prove the truth of the matter stated. Except as provided by law, hearsay evidence is inadmissible. (Section 1200(a) and (b) of the Evidence Code) Existing law provides exceptions to the hearsay rule, including evidence of a statement made by a declarant who is unavailable as a witness that he/she has or has not made a will. (Section 1260 of the Evidence Code) Existing law, for the purposes of the Evidence Code, CONTINUED SB 1041 Page 2 provides that "unavailable as a witness," means that the declarant is any of the following: 1. Exempt or precluded on the ground of privilege from testifying concerning the matter to which his/her statement is relevant. 2. Disqualified from testifying to the matter. 3. Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity. 4. Absent from the hearing and the court is unable to compel his or her attendance by its process. 5. Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his/her attendance by the court's process. (Section 240(a)(4) of the Evidence Code) This bill provides, except as otherwise provided in existing law, evidence of any of the following statements made by a declarant who is unavailable as a witness is not made inadmissible by the hearsay rule: 1. That the declarant has or has not made a will or established or amended a revocable trust. 2. That the declarant has or has not revoked his/her will, revocable trust, or an amendment to a revocable trust. 3. That identifies the declarant's will, revocable trust, or an amendment to a revocable trust. Evidence of a statement is inadmissible under the section if the statement was made under circumstances that indicate its lack of trustworthiness. Background Under the hearsay rules of evidence, out-of-court statements offered to prove the truth of the matter SB 1041 Page 3 asserted are inadmissible in court unless the actual declarant testifies or the testimony fits into one of the categorical exceptions to the rule. (Section 1200 et seq. of the Evidence Code) The general exclusion of hearsay from evidence is premised on the notion that out-of-court statements are inherently more unreliable than live testimony. Specifically, hearsay statements are not made under oath, the adverse party has no opportunity to cross-examine the declarant, and the jury cannot observe the declarant's demeanor while making the statements. ( People v. Duarte (2000) 24 Cal.4th 603, 610) Courts developed categorical exceptions to the hearsay rule because of the perception that certain statements are inherently reliable despite the absence of direct testimony and because the need for certain evidence outweighs the risks. (See Mathews, Making the Crucial Connection: A Proposed Threat Hearsay Exception, 27 Golden Gate U. Law Rev. 117 [1993].) For example, statements made when the declarant knows he/she is about to die or excited statements made without an opportunity to reflect are considered more believable because the declarant has neither the motive nor the time to fabricate the statement. (Section 1240 of the Evidence Code [spontaneous, contemporaneous, or dying declarations as an exception to the hearsay rule].) In general, however, hearsay is presumptively unreliable. This bill, sponsored by the Conference of California Bar Associations, amends the Evidence Code to extend the hearsay exception to a statement made by a declarant who is unavailable as a witness that he/she has or has not established a revocable trust, or has or has not revoked his/her revocable trust, or that identifies his/her revocable trust, or any amendment thereto. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 5/6/10) Conference of California Bar Associations (source) Judicial Council of California The Executive Committee of the Trusts and Estates Section SB 1041 Page 4 of the State Bar ARGUMENTS IN SUPPORT : The author writes: "Evidence Code [Section] 1260 establishes [an] exception for a statement made by a declarant that he or she has or has not made or revoked a will, or which identifies such a will. The basis for the exception, of course, is that in most such situations the declarant is dead and therefore unavailable to testify. "In recent years, however, living trusts have become increasingly common as a substitute for wills. However, there is no corresponding exception to the hearsay evidence rule for a statement made by a declarant that he or she has or has not made or revoked a trust, or which identifies such a trust, even though the same rationale for exception exists (i.e., the fact that the declarant is very often dead and therefore unavailable to testify). "In an era when many estate plans are contained in trusts rather than in wills, it is important to the courts to have available evidence as to the existence of a living trust and to identify such a trust, if it does exist. Often the best probative evidence is that of statements made by the decedent while living. The existing law works well for wills, and its expansion to include trusts will improve the conduct of trials with regard to the estate plans of decedents." RJG:mw 5/6/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****