21380-21392
PROBATE CODE
SECTION 21380-21392
21380. (a) A provision of an instrument making a donative transfer
to any of the following persons is presumed to be the product of
fraud or undue influence:
(1) The person who drafted the instrument.
(2) A person in a fiduciary relationship with the transferor who
transcribed the instrument or caused it to be transcribed.
(3) A care custodian of a transferor who is a dependent adult, but
only if the instrument was executed during the period in which the
care custodian provided services to the transferor, or within 90 days
before or after that period.
(4) A person who is related by blood or affinity, within the third
degree, to any person described in paragraphs (1) to (3), inclusive.
(5) A cohabitant or employee of any person described in paragraphs
(1) to (3), inclusive.
(6) A partner, shareholder, or employee of a law firm in which a
person described in paragraph (1) or (2) has an ownership interest.
(b) The presumption created by this section is a presumption
affecting the burden of proof. The presumption may be rebutted by
proving, by clear and convincing evidence, that the donative transfer
was not the product of fraud or undue influence.
(c) Notwithstanding subdivision (b), with respect to a donative
transfer to the person who drafted the donative instrument, or to a
person who is related to, or associated with, the drafter as
described in paragraph (4), (5), or (6) of subdivision (a), the
presumption created by this section is conclusive.
(d) If a beneficiary is unsuccessful in rebutting the presumption,
the beneficiary shall bear all costs of the proceeding, including
reasonable attorney's fees.
21382. Section 21380 does not apply to any of the following
instruments or transfers:
(a) A donative transfer to a person who is related by blood or
affinity, within the fourth degree, to the transferor or is the
cohabitant of the transferor.
(b) An instrument that is drafted or transcribed by a person who
is related by blood or affinity, within the fourth degree, to the
transferor or is the cohabitant of the transferor.
(c) An instrument that is approved pursuant to an order under
Article 10 (commencing with Section 2580) of Chapter 6 of Part 4 of
Division 4, after full disclosure of the relationships of the persons
involved.
(d) A donative transfer to 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 the transferred property for the entity.
(e) A donative transfer of property valued at five thousand
dollars ($5,000) or less, if the total value of the transferor's
estate equals or exceeds the amount stated in Section 13100.
(f) An instrument executed outside of California by a transferor
who was not a resident of California when the instrument was
executed.
21384. (a) A gift is not subject to Section 21380 if the instrument
is reviewed by an independent attorney who counsels the transferor,
out of the presence of any heir or proposed beneficiary, about the
nature and consequences of the intended transfer, including the
effect of the intended transfer on the transferor's heirs and on any
beneficiary of a prior donative instrument, attempts to determine if
the intended transfer is the result of fraud or undue influence, and
signs and delivers to the transferor an original certificate in
substantially the following form:
"CERTIFICATE OF INDEPENDENT REVIEW
I, _______________________________, have reviewed
(attorney's name)
_______________and have counseled the transferor,
(name of instrument)
__________, on the nature and consequences of any
(name of transferor)
transfers of property to ________________________
(name of person described in Section 21380 of
the Probate Code)
that would be made by the instrument.
I am an "independent attorney" as defined in
Section 21370 of the Probate Code and am in a
position to advise the transferor independently,
impartially, and confidentially as to the
consequences of the transfer.
On the basis of this counsel, I conclude that
the transfers to
______________________________________ that would
(name of person described in Section 21380 of
the Probate Code)
be made by the instrument are not the product of
fraud or undue influence.
____________________________ ___________________"
(Name of Attorney) (Date)
(b) An attorney whose written engagement, signed by the
transferor, is expressly limited solely to compliance with the
requirements of this section, shall not be considered to otherwise
represent the transferor as a client.
(c) An attorney who drafts an instrument can review and certify
the same instrument pursuant to this section, but only as to a gift
to a care custodian. In all other circumstances, an attorney who
drafts an instrument may not review and certify the instrument.
(d) If the certificate is prepared by an attorney other than the
attorney who drafted the instrument that is under review, a copy of
the signed certification shall be provided to the drafting attorney.
21386. If a gift fails under this part, the instrument making the
gift shall operate as if the beneficiary had predeceased the
transferor without spouse, domestic partner, or issue.
21388. (a) A person is not liable for transferring property
pursuant to an instrument that is subject to the presumption created
under this part, unless the person is served with notice, prior to
transferring the property, that the instrument has been contested
under this part.
(b) A person who is served with notice that an instrument has been
contested under this part is not liable for failing to transfer
property pursuant to the instrument, unless the person is served with
notice that the validity of the transfer has been conclusively
determined by a court.
21390. This part applies notwithstanding a contrary provision in an
instrument.
21392. (a) This part shall apply to instruments that become
irrevocable on or after January 1, 2011. For the purposes of this
section, an instrument that is otherwise revocable or amendable shall
be deemed to be irrevocable if, on or after January 1, 2011, the
transferor by reason of incapacity was unable to change the
disposition of the transferor's property and did not regain capacity
before the date of the transferor's death.
(b) It is the intent of the Legislature that this part supplement
the common law on undue influence, without superseding or interfering
in the operation of that law. Nothing in this part precludes an
action to contest a donative transfer under the common law or under
any other applicable law. This subdivision is declarative of existing
law.