Under probate code 21379 and 21380 or another code where it says whoever draws up the Will cannot receive a share, or is that what it says?
If her husband draws up the Will and Trust is she and her siblings disqualified to get a share as I believe he is disqualified–or is he?
Thank You-
Roy Wayne LitherlandProbate AttorneyCampbell, CACA licensed ·
The question being asked is whether or not a daughter whose husband prepared a will for the daughter's mother is disinherited because of her husband's involvement, specifically in reference to Probate Code Sections 21380 and following. The answer is more complicated than the question.
Probate Code Section 21380 does not "disinherit" anyone. What it does is creates a "presumption" that the instrument (such as a will or a trust, or other dispositive document) was obtained as a result of fraud and/or undue influence. If the provision is contested in court, the court is required to presume fraud or undue influence occurred and thus the provision is voided unless refuted by convincing evidence that no such fraud or undue influence occurred.
The presumption arises under certain circumstances, such as:
1. The person who wrote the instrument is the beneficiary of a dispositive provision in their favor (Probate Code Section 21380(a)(1); or
2. The person who wrote the instrument is the spouse of the beneficiary of a dispositive provision in their favor (Probate Code Section 21380(a)(4), and Probate Code Section 21374(a)(1);
3. Other categories as defined by Probate Code Section 21380.
But there are exceptions to the rules creating the presumption. For instance no presumption will arise if:
1. The person who wrote the instrument is the beneficiary of a dispositive provision in own their favor is also living with the transferor (Probate Code Section 21382(a); or
2. The person who wrote the instrument is the spouse of the beneficiary of a dispositive provision in their favor, and such person is also living with the transferor (Probate Code Section 21382(b), and Probate Code Section 21374(a)(1);
3. Other categories as defined by Probate Code Section 21382 exist.
4. An independent attorney certifies to certain facts pertaining to the execution of the document after an attorney has reviewed it. (Probate Code Section 21384).
I hope this helps answer your question.
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Roy W. Litherland is licensed to practice law only in the State California. For questions connected with the laws of other states you should seek an Attorney in that state to advise you.
Mr. Litherland should have referred you to California Probate Code Section 21382, which provides that if an instrument is drafted by a person who is related by blood (within the 4th degree of consanguinity) then the presumptions of fraud and undue influence do not apply. The same is true if the person who is related by "affinity" to the testator - in other words, the spouse of someone who is related by blood.
So the simple answer to your question is that if "A" is Parent and "B" is son-in-law, then there's no presumption of undue influence if B drafts a will or a trust for A.
