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IS A TESTAMENTARY INTEREST INDEFEASIBLY VESTED IN P-1 IF ANOTHER HAS A CLAIM AGAINST IT?
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I am a Ca attorney who recently asked a question about probate disclaimer. My client’s interest came to him through intestate succession. Research shows it may be used to prevent an inheritance from going to a person who has no right to it, even if he loses his share. BUT will it work? Ca Probate code §279 states that in order to be effective a disclaimer “shall be filed within a reasonable time after the person able to disclaim acquires knowledge of the interest. And it is “conclusively presumed to have been filed in reasonable time if filed in nine months after death of creator of interest or within nine months after interest is indefeasibly vested, whichever is later. QUESTION: Is an interest, INDEFEASIBLY VESTED on one, if another claims all or part of the interest is his own?
I dont know about California. But in general the interests that disclaimer statutes are concerned with, tend to vest when the grantor of those interests dies. The nine month time perior relates to federal estate tax law. But when you say there is another person claiming an interest, that suggests maybe for example a claim of adverse possession over real estate, that might be litigated in the context of a quiet title action. If you were representing someone who intended to disclaim an interest in an asset like that, probably it would be inconsistent for that person to both file a disclaimer and also fight a quiet title action. The proper course to be consistent with the disclaimer would perhaps be to default. In other words, if someone else is asserting a competing claim to rightful ownership of the asset, that does not work against the disclaimer, unless the disclaimant is fighting the competing claim, which would be exercising an incident ofownership. Not sure if that helps or not but that is where i would start my analysis based on your words.
