San Diego Estate Planning Lawyer Blog
Past blogs on our website have discussed California Probate Code section 21350. That section limits certain individuals from receiving assets under a will or a trust in some circumstances. Some of the suspect transfers are to the person who drafted the will or trust, a conservator of the transferor, or a care custodian of the transferor. A “care custodian” is defined as a person or agency which provides health or social services to an elder or a dependent adult. The section states that such individuals are presumed to have unduly influenced the transferor to provide for them in their will or trust. Once the disqualifying relationship is established, the transfer is presumptively invalid and it is then up to the objecting party to show by clear and convincing evidence that the transfer was not due to fraud, undue influence, duress, or menace,
Probate Code section 21351 sets forth certain exceptions to these rules. If the transferor and the care custodian are related by blood or marriage, there is an exception. If the document was reviewed by an independent attorney who counseled the transferor and determined that it was not the result of fraud, menace, duress, or undue influence, there is an exception.
In 2009 a California case Estate of Pryor held that a care custodian who later marries the transferor before his or her death, can invoke the spousal exception of Probate Code Section 21351. The case involved Richard Pryor, the comedian, who died in 2005. He and his wife Jennifer were married in the 80’s and then subsequently divorced. After the divorce, the ex-wife became Pryor’s care custodian in 1994. In 2001 they secretly remarried. Pryor in his will left substantial assets to his wife rather than his children. The children claimed that the remarriage was due to undue influence and fraud and sought to have the gifts declared invalid as a presumptively invalid transfer to a care custodian. The Court found in favor of the wife, stating that section 21351 created an exception for persons who are related by blood or marriage. The section doesn’t mention anything about showing that the marriage was not procured by fraud or undue influence. Since the Legislature had not indicated that the marriage could not be the result of fraud or undue influence, the Court felt it could not take it upon itself to make such a finding.
At Scott C. Soady, A Professional Corporation, we counsel clients who are thinking about leaving assets to a care custodian. We can draft a Certificate of Independent Review if we determine that the gift to a care custodian was not the product of fraud, undue influence, or duress. This can prevent litigation after your death about whether your care custodian should receive your gift.