Code Section Group

Probate Code - PROB

DIVISION 11. CONSTRUCTION OF WILLS, TRUSTS, AND OTHER INSTRUMENTS [21101 - 21700]

  ( Division 11 enacted by Stats. 1990, Ch. 79. )

PART 3.7. Presumption of Fraud or Undue Influence [21360 - 21392]

  ( Part 3.5 added by Stats. 2010, Ch. 620, Sec. 7. )

CHAPTER 2. Operation and Effect of Presumption [21380 - 21392]
  ( Chapter 2 added by Stats. 2010, Ch. 620, Sec. 7. )

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 who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was 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.

(Amended by Stats. 2017, Ch. 56, Sec. 1. (SB 153) Effective January 1, 2018.)

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.

(Added by Stats. 2010, Ch. 620, Sec. 7. (SB 105) Effective January 1, 2011.)

21384.
  

(a) A donative transfer 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 donative transfer 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.

(Amended by Stats. 2017, Ch. 56, Sec. 2. (SB 153) Effective January 1, 2018.)

21386.
  

If a donative transfer fails under this part, the instrument making the donative transfer shall operate as if the beneficiary had predeceased the transferor without spouse, domestic partner, or issue.

(Amended by Stats. 2017, Ch. 56, Sec. 3. (SB 153) Effective January 1, 2018.)

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.

(Added by Stats. 2010, Ch. 620, Sec. 7. (SB 105) Effective January 1, 2011.)

21390.
  

This part applies notwithstanding a contrary provision in an instrument.

(Added by Stats. 2010, Ch. 620, Sec. 7. (SB 105) Effective January 1, 2011.)

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 fraud and 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.

(Amended by Stats. 2017, Ch. 56, Sec. 4. (SB 153) Effective January 1, 2018.)

PROBProbate Code - PROB