BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  SB 1041|
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                                 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,  
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          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  







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          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  







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          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

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