The California Supreme Court rules that the beneficiary of a will who provided information needed in the instrument's preparation and who encouraged the donor to execute it cannot be disqualified under the state probate code by having 'caused' the instrument to be transcribed. Rice v. Clark (Cal., No. S097456, June 10, 2002).
In 1995, Cecilia M. Clare, and elderly widow with no children, created a will that left her entire estate in trust to Richard L. Clark, a man whom Mrs. Clare had employed in various capacities for seven years. On Mrs. Clare''s death, the trust estate was to be distributed to Mr. Clark and his wife in equal shares or to Owen S. Rice if both Clarks predeceased Mrs. Clare. Mr. Clark facilitated the preparation and execution of the instruments in a number of ways, including supplying a list of assets to be placed in the trust, arranging Mrs. Clare's appointments with her attorney and driving her to them, and encouraging Mrs. Clare to execute the will and trust after she initially balked at doing so.
Following Mrs. Clare's death in 1996, Owen Rice sought to invalidate the donative transfers to the Clarks, charging that Mr. Clark was disqualified under Probate Code section 21350, which presumptively disqualifies, as the recipient of a donative transfer by instrument, a person who drafts the instrument (id., subd. (a)(1)) or who, having a fiduciary relationship with the transferor, "transcribes the instrument or causes it to be transcribed" (id., subd. (a)(4)).
The trial court entered judgment for the Clarks, finding no evidence that Mr. Clark "caused" the instruments'' transcription. The Court of Appeal affirmed, rejecting Mr. Rice''s contention that the trial court''s definition of "causes it to be transcribed" was too narrow. Mr. Rice appealed, arguing that under the lower courts'' construction only an instrument''s drafter, by instructing another person to transcribe the instrument, could qualify as a person who caused an instrument''s transcription.
The Supreme Court of California affirms. The court disagrees that the lower courts' construction was too narrow, holding that although the roles of drafter and transcriber are often linked, they are not necessarily so. The court notes that the statute in question was created specifically to address the reportedly egregious self-dealing of a probate attorney who represented numerous elderly clients. In the present case, the court finds that although Mr. Clark 'materially assisted Clare to dictate the contents of her will and trust to an attorney and to execute the instruments drafted by the attorney, [he] did not himself directly participate in transcribing the instruments.'
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