By Lynda Chung
.jpg) |
| Lynda Chung |
In Estate of Oligario Lira (2013) 2013 DJDAR 948, the settlor married a woman named Mary in 1968. The settlor had 3 children from his previous marriage, and Mary had 6 children from her previous marriage. In 2008, after 40 years of marriage, Mary filed for divorce. In 2009, after Mary filed for divorce, but before the divorce was finalized, the settlor executed his will and trust, naming his 3 children and 3 of his 6 stepchildren as beneficiaries. The settlor named Robert, a stepson, as the successor trustee. The settlor died in 2010.
After the settlor's death, one of the settlor's natural children challenged the settlor's will and trust on the ground that the settlor's gift to the stepchildren, including Robert, was a prohibited transfer under Probate Code section 21350. Section 21350(a) presumptively disqualifies gifts to the drafter of a will as well as the drafter's relatives and employees. In this case, the attorney who drafted the will was a step-grandchild of the settlor and was related to the settlor's stepson, Robert. The reported decision does not clarify whether Robert was the drafting attorney's father or uncle.
The Court of Appeal validated the gift to the stepchildren. Section 21351(a) provides an exemption to the prohibited transfers under Section 21350(a). Under Section 21351(a), if the settlor is related by blood or marriage to the beneficiary or the person who drafted the instrument, the gift is valid even if the beneficiary is related to the drafting attorney. Here, the settlor was related to Robert by marriage because, according to the California Court of Appeal, the gift was made when the settlor executed the will, and not when he died, and when the settlor executed the will his divorce from Robert's mother had not yet been finalized.
While will contests are not unique to blended families, what makes this case unique is the fact that the drafting attorney was related to the settlor's stepchildren. Had the settlor hired a lawyer unrelated to his stepchildren, there would have been no case as the settlor was free to leave his assets to anyone, including his stepchildren. The only reason why the will was challenged was because the drafting attorney was related to the stepchildren beneficiaries. However, because the stepchildren were still considered family while the divorce was pending, the exception to the prohibited transfer applied and the settlor's gift to his stepchildren was held valid.
Word to the wise – There are many estate planning lawyers out there. Think twice before you hire an attorney related to your beneficiaries if you want to safeguard your will. Hiring an attorney related or associated with your beneficiaries may, at a minimum, raise suspicion that your beloved beneficiaries unduly influenced you to procure the will.
Contact Lynda Chung
No comments:
Post a Comment