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.

  The will and trust of Oligario Lira named his three natural children and three of his six stepchildren as beneficiaries. Oligario executed his will and trust while he was married to Mary, the mother of the three stepson beneficiaries, but after she had commenced dissolution proceedings. The judgment dissolving their marriage was entered four months before Oligario’s death.

  One of Oligario’s natural children challenged the transfers. She alleged that Oligario’s donative transfers to his stepsons were disqualified because they were related to the attorney who drafted the will and trust. The documents were drafted by Oligario’s step-grandson. She reasoned that since the stepsons were not related to Oligario at the time of his death, the exemption did not apply and the transfers were invalid.

  The court upheld the transfers. “[T]he section 21351, subdivision (a) exemption from disqualification applies where the transferor and transferee are related at the time that the transferor executes the donative instruments.  Section 21351, subdivision (a) does not require that the transferor and transferee be related upon the death of the transferor.”


  I consult with clients and accept cases involving disqualification under the Probate Code and claims of undue influence. For other types of cases I accept, please consult the My Practice page. If you are seeking a legal consult or representation, please give me a call at 818.971.9409. – Michael Daymude

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