Drafter Of A Will Who Is Related By Marriage To The Transferor At The Time Of The Drafting, But Not At The Time Of Death, May Be A Beneficiary


In Estate of Lira (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., December 26, 2012), a California court of appeal considered whether statute allows an attorney who was related by marriage at the time of the drafting of a will, but not at the time of the time of the transferor’s death, to benefit from the will. The court ruled that the intent of the law was to allow the attorney in that situation to be a beneficiary.


Oligario Lira married Mary Terrones in 1968.  Lira had three children from a previous marriage, including Mary Ratcliff.  Terrones had six children from a previous marriage, including Robert Terrones.  Mary Terrones filed a petition for dissolution of marriage in 2008.  In 2009, before the dissolution was final, Lira executed his will and trust designating three of his natural children and three of his stepchildren as primary beneficiaries.  Lira named stepson Robert, an attorney, as his successor as trustee and personal representative of his estate.  Robert helped draft the will. The dissolution of marriage became final on February 3, 2010.  Oligario Lira died on July 20, 2010.

Mary Ratcliff filed a petition for probate of Lira’s estate.  Robert Terrones filed a petition, with a copy of the will and asked the court to appoint him as executor of Lira’s estate.  Ratcliff alleged that the will was void because Probate Code Section 21350 prohibits lawyers who draft a will and trust from receiving property from the trust.  Section 21351 creates an exception to that prohibition, however, permitting such transfers if the attorney is “related by blood or marriage” to the transferor.  Ratcliff argued that the exception did not apply because Lira’s marriage was dissolved before he died and Robert Terrones was therefore not related to Lira at the time of his death.  The trial court granted Robert Terrones’ petition and Ratcliff appealed. 


Robert Terrones was related by marriage to Oligario Lira at the time Lira executed his will, but not at the time of his death.  The question is whether the combined effect of Sections 21350 and 21351 allow for transfers from a will to the drafter of the will if the drafter was related by marriage to the transferor at the time of the drafting, but not at the time of the transferor’s death. 

The purpose of the prohibition in Section 21350 was to end a practice by unscrupulous probate attorneys of bilking elderly clients by drafting their wills and naming themselves as inheritors.  That was not the case here, the court said.  It was Lira’s clear intent that his estate be divided among his natural children and stepchildren.  That is the purpose of the exception in Section 21351, the court said, to allow a relative of the transferor to assist in the drafting of the will and not be disqualified from its benefits by doing so. 

Therefore, the purpose of those two sections is best served by the conclusion that the exemption applies to persons related by blood or marriage at the time of the execution of the will, regardless of whether they remain related at the time of death.  Section 21351’s exemptions applied to Robert and the document making him a beneficiary of Lira’s will was valid.  The trial court judgment was affirmed. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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