Time of Execution Determines Limitation on Donative Transfer

  California Probate Code section 21350(a)(2) provides that no provision in any instrument shall be valid to make a donative transfer to: 1) The person who drafted the instrument; 2) A person who is related by blood or marriage to the person who drafted the instrument. Section 21351(a), however, exempts from disqualification transfers to persons who are related to the transferor by blood or marriage.

[The Probate Code was amended and renumbered since the opinion referenced below which references section 21350, above. Provisions that related to donative transfers, whether they be by will, trust, or otherwise are now contained in sections 21380 to 21392. The current text of these provisions which limit transfers to drafters and others is here. In view of these amendments, care should be taken when relying on opinions which construe Probate Code section 21350, the predecessor of section 21380.]

  In Estate of Oligario Lira the court was confronted with the issue of whether transfers to stepchildren are barred when they are related to the drafter of the will and trust — when the transfers would occur only after the transferor’s death and at a time when the transferor was no longer married to their mother and therefore not related by marriage to them. Continue reading