In estate litigation, it is important to consider elder abuse, fraud and undue influence. The California State government has attempted to address these issues with legislation. In 2009, State Senator Harman introduced SB 105 to revise the Probate Code considering the California Law Commission's recommendation on Donative Transfer Restrictions. Currently, Probate Code section 21350 provides a gift to a disqualified person is presumed to be the product of menace, fraud, or undue influence and thus invalid. Disqualified persons include non-family members who are drafters of the transfer documents, fiduciaries of the donor, a "care custodian" of a "dependent adult" and others. However, there are a number of exceptions to that rule.

One of the exceptions to the rule can be found in Probate Code section 21351(a). This code provides an exception to the assumption if the donor consults with an "independent attorney" and the attorney provides a "certificate of independent review." However, this begs the questions, what is an "Independent Attorney" and what constitutes an "Independent Review".

The recent appellate court decision, Estate of Winans, ___ Cal. Rptr. 3d. ___, WL 1078001 addressed that issue. Additionally, SB 105 might provide additional clarification. The Court in Estate of Winans found that an "independent attorney" is an attorney whose "personal circumstances do not prevent him or her from forming a disinterested judgment about the validity of the bequest." That view of an independent attorney broadly disqualifies many from providing this Certificate of Independent Review. For example, if the attorney is assisting the donor in other matters, this might prevent the attorney form providing the Certificate.

I expect the draft of SB 105 will be refined to consider the appellate courts views on what constitutes an independent attorney and the scope and other requirements in counseling.