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,
CONTINUED
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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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